MICHAEL ANTHONY HENRY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001989-MR
MICHAEL ANTHONY HENRY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 2000-CR-00178
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, SCHRODER, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Michael Henry appeals from a judgment of the
Fayette Circuit Court, entered August 15, 2000, convicting him of
assault in the first degree,1 of robbery in the first degree,2
and of theft by unlawful taking of a firearm.3
In conformity
with the jury’s decision, the trial court sentenced Henry to
concurrent sentences of fifteen, fifteen, and five years’
imprisonment, respectively.
1
KRS 508.010 (1975).
2
KRS 515.020 (1975).
3
KRS 514.030(2)(a) (1998).
Henry contends that the federal and
state constitutional provisions against double jeopardy4 bar his
convictions of both robbery and assault.
Convinced that these
convictions did not violate Henry’s constitutional rights, we
affirm.
In December of 1999, Henry stole a handgun that
belonged to an acquaintance of his and a few days later used the
gun during a robbery at a Citgo gas station and convenience store
in Lexington.
Brandishing the gun, Henry approached the cashier
and demanded that she give him the store’s money.
At some point,
the cashier tried either to push the gun away from herself or to
wrestle it from Henry.
The gun discharged, and the shot
seriously injured the cashier.
When police officers arrested
Henry a couple of days later, he confessed to the incident.
At
trial in July 2000, Henry argued that he had not intended to
shoot the cashier, but that the gun had fired accidently during
their struggle.
Because of this and because of his young age--he
was eighteen years old at the time of the incident--Henry urged
the jury to be lenient.
On appeal, Henry contends that the robbery and the
assault constitute a single offense for which he should not have
been convicted twice.5
Although it involves additional details,
which we shall address below, Henry’s argument is essentially as
follows: Assault in the first degree requires proof of an assault
plus proof of aggravating circumstances.
4
The aggravating
Constitution of the United States, Amendment V; Constitution of Kentucky, Section 13.
5
Because we have concluded that no double-jeopardy violation occurred in this case, we
need not address whether Henry properly preserved this issue at the trial level.
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circumstances justify a more severe punishment than would be
appropriate in their absence.
this case was the robbery.
The aggravating circumstance in
The robbery thus provided a necessary
element of first-degree assault, and Henry was punished for the
robbery when he was subjected to the more severe penalty attached
to that high degree of the assault offense.
Having been punished
once for the robbery, Henry asserts that the federal and state
double-jeopardy clauses, which include among their guarantees
protection against improperly cumulative sentences,6 forbid his
being subjected to punishment again for that offense by way of
the separate conviction of robbery.
Although this is by no means
an unreasonable interpretation of the double-jeopardy guarantee,
the short answer to Henry’s argument, and the answer we are
constrained to make, is that both the United States Supreme Court
and our Supreme Court have rejected it.7
Both Supreme Courts have endorsed the Blockburger8 test
for determining whether a violation of two distinct statutory
provisions is, for double-jeopardy purposes, two offenses or only
one.9
There are two offenses if “each provision requires proof
6
See Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure, Second
Edition, § 17.4(b) - (c) (1999).
7
See United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993);
Commonwealth v. Burge, Ky., 947 S.W.2d 805, 809-11 (1997), cert. denied sub nom., Effinger
v. Kentucky, 522 U.S. 971, 118 S. Ct. 422, 139 L. Ed. 2d 323 (1997).
8
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932).
9
United States v. Dixon, supra; Commonwealth v. Burge, supra.
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of an additional fact which the other does not.”10
Rather than
an abstract or functional approach to the elements of the offense
such as Henry’s argument employs (basic offense, say, and
aggravating factor), the Blockburger test requires a literal
parsing of the statutory language.
In this case, for example, as
the Commonwealth points out, Henry’s first-degree robbery
conviction required proof of a theft,11 which was not required to
convict of assault.
On the other hand, the first-degree assault
conviction required proof of an intentionally- or wantonlyinflicted serious physical injury,12 which the robbery conviction
did not require.13
The robbery and the assault were not the same
10
Taylor v. Commonwealth, Ky., 995 S.W.2d 355, 358 (1999) (quoting Blockburger, 284
U.S. at 304, 52 S. Ct. at 182).
11
The first-degree robbery statute, KRS 515.020(1), provides as follows:
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.
As was the defendant in Taylor v. Commonwealth, supra, Henry was charged with and tried for
the violation of section (b).
12
KRS 508.010, assault in the first degree, provides that
[a] person is guilty of assault in the first degree when,
(a) He intentionally causes serious physical injury to another person by means of a
deadly weapon or a dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the value of human
life he wantonly engages in conduct which creates a grave risk f death to another
and thereby causes serious physical injury to another person.
13
Cf. Taylor v. Commonwealth, supra (addressing a similar double-jeopardy challenge to
(continued...)
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offense, therefore, and Henry’s convictions of both of them did
not violate the constitutional guarantee against double jeopardy.
Against this conclusion and in an attempt to reconcile
his interpretation of the double-jeopardy clause with
Blockburger, Henry notes that the jury found him guilty of
wantonly injuring the cashier.
The robbery, he argues, in its
entirety, is the evidence upon which the jury must have based its
finding of wantonness.
But that would bring all the elements of
the robbery within the elements of the assault, and, under
Blockburger, the robbery and the assault would thus constitute a
single offense.
We disagree.
To find Henry’s conduct wanton in this case, the jury
had only to believe that in brandishing the gun Henry consciously
disregarded a grave risk of death14 and that he did so in
circumstances manifesting extreme indifference to the value of
human life.
It need not have believed that he did so with the
intent to further a theft.
This latter belief was necessary,
however, if the jury was to convict Henry of robbery.
Because an
element of robbery remained outside the elements of assault--even
the wantonness theory of assault--Henry’s convictions did not,
under our precedents, amount to a double-jeopardy violation.
For these reasons, we affirm the August 15, 2000,
judgment of the Fayette Circuit Court.
ALL CONCUR.
13
(...continued)
robbery and assault convictions).
14
KRS 501.020 and KRS 508.010.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
N. Susan Roncarti
Assistant Attorney General
Frankfort, Kentucky
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