FORD (JERMAINE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000398-MR
JERMAINE FORD
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 06-CR-00145-003
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
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BEFORE: ACREE, DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Jermaine Ford appeals from a judgment of conviction and
sentence of imprisonment from the Muhlenberg Circuit Court upon a jury verdict
finding him guilty of complicity to first degree promoting contraband and being a
persistent felony offender in the first degree. After thoroughly considering the
record before us, we reverse Ford’s conviction.
In early 2006, while incarcerated at Green River Correctional
Complex, Ford and two other inmates planned to smuggle marijuana into the
prison. Utilizing contacts the men had outside the prison, they arranged for
marijuana to be concealed in a box of books shipped to the prison’s law library.
Prison authorities intercepted the box and the scheme failed.
In August 2006, a Muhlenberg County grand jury indicted Ford and
his co-defendants on one count of engaging in organized crime (KRS 506.120) and
as persistent felony offenders (KRS 532.080). On January 23, 2007, Ford and one
co-defendant, Brian Acton, were tried jointly. At the close of all evidence, the trial
court granted a directed verdict in favor of Ford and Acton as to the charge of
engaging in organized crime. Over the vigorous objections of defense counsel, the
judge granted the Commonwealth’s motion to instruct the jury on complicity to
first degree promoting contraband as a lesser-included offense of engaging in
organized crime. The jury found Ford and Acton guilty of complicity to promoting
contraband and, in the penalty phase, found them to be first degree persistent
felony offenders. Thereafter, the trial court sentenced Ford to fifteen years’
imprisonment pursuant to the recommendation of the jury. This appeal followed.
Ford raises several issues on appeal; however, we will address only
one argument, as it is dispositive. Ford contends the trial court committed
reversible error by instructing the jury on complicity to promoting contraband
because it is not a lesser-included offense of engaging in organized crime. We
agree.
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“Under KRS 505.020(2), ‘[a] defendant may be convicted of an
offense that is included in any offense with which he is formally charged. An
offense is so included when: (a) It is established by proof of the same or less than
all the facts required to establish the commission of the offense charged. . . .’”
Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006). “Stated otherwise, if
the lesser offense requires proof of a fact not required to prove the greater offense,
then the lesser offense is not included in the greater offense, but is simply a
separate, uncharged offense.” Colwell v. Commonwealth, 37 S.W.3d 721, 726
(Ky. 2000).
Accordingly, we must compare the language of the two statutes. KRS
506.120, Engaging in Organized Crime, states in part:
1) A person, with the purpose to establish or maintain a
criminal syndicate or to facilitate any of its activities,
shall not do any of the following:
(a) Organize or participate in organizing a criminal
syndicate or any of its activities;
(b) Provide material aid to a criminal syndicate or any of
its activities, whether such aid is in the form of money or
other property, or credit;
(c) Manage, supervise, or direct any of the activities of a
criminal syndicate, at any level of responsibility;
(d) Knowingly furnish legal, accounting, or other
managerial services to a criminal syndicate;
(e) Commit, or conspire or attempt to commit, or act as
an accomplice in the commission of, any offense of a
type in which a criminal syndicate engages on a
continuing basis[.]
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***
(3) As used in this section “criminal syndicate” means
five (5) or more persons collaborating to promote or
engage in any of the following on a continuing basis:
***
e) Illegal trafficking in controlled substances as
prohibited by KRS Chapter 218A[.]
In the case at bar, the trial court found the evidence insufficient to
sustain the charge of engaging in organized crime. As a result, the court instructed
the jury on complicity to first degree promoting contraband as a lesser-included
offense.
KRS 520.050(1), Promoting Contraband in the First Degree, states in
relevant part:
(1) A person is guilty of promoting contraband in the first
degree when:
(a) He knowingly introduces dangerous contraband into a
detention facility or a penitentiary; or
(b) Being a person confined in a detention facility or a
penitentiary, he knowingly makes, obtains, or possesses
dangerous contraband.
Ford argues, and the Commonwealth does not contend otherwise, that
the promoting contraband statute clearly requires proof of facts not required to
prove the greater offense. Engaging in organized crime requires participation in
the organization of a criminal syndicate for an illegal purpose, such as trafficking
in a controlled substance. KRS 506.120; Hill v. Commonwealth, 125 S.W.3d 221,
233 (Ky. 2004). In contrast, promoting contraband requires possession of
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dangerous contraband1 by an inmate in a detention facility. KRS 520.050; Tyler v.
Commonwealth, 805 S.W.2d 126, 127 (Ky. 1991).
We conclude that promoting contraband is not a lesser-included
offense of engaging in organized crime; rather, it is a lesser uncharged offense.
“The fact that the evidence would support a guilty verdict on a lesser uncharged
offense does not establish that it is a lesser included offense of the charged
offense.” Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). “It is the
rule that an indictment must name the offense charged, and that conviction can be
had only for the offense named.” Lovelace v. Commonwealth, 193 Ky. 425, 236
S.W. 567, 568 (1922). Consequently, the trial court committed reversible error by
instructing the jury on an uncharged offense over Ford’s objection.
For the reasons stated herein, the judgment of conviction and sentence
of the Muhlenberg Circuit Court is reversed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
“‘Dangerous contraband’ means contraband which is capable of use to endanger the safety or
security of a detention facility or persons therein, including, but not limited to, dangerous
instruments as defined in KRS 500.080, any controlled substances, any quantity of an alcoholic
beverage, and any quantity of marijuana, and saws, files, and similar metal cutting
instruments[.]” KRS 520.010(3).
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