HOWELL (ARVID) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000270-MR
ARVID HOWELL
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 07-CR-00248
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
MOORE, JUDGE: Arvid Howell appeals the jury verdict and judgment of the
Kenton Circuit Court convicting him for assault in the second degree. After a
careful review of the record, we reverse, as the trial court was incorrect in finding,
under the circumstances of this case, that second-degree assault is a lesser included
offense of first-degree robbery.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
I. FACTUAL AND PROCEDURAL BACKGROUND
Howell was an employee at SIS Industries, a company located in
Northern Kentucky. While at work one night, Howell suspected that one of his coworkers had stolen his money and illegal drugs. Howell approached this individual
regarding his suspicions. In response, the co-worker gave Howell some money, a
cellular phone, and a jacket so that Howell could search for the missing drugs.
Howell later testified that he kept the money, which he claimed he rightfully
owned, and put the cellular phone and jacket on a nearby engine block. Under the
apparent belief that this individual still had the drugs, Howell proceeded to kick his
co-worker between the legs and in the face while wearing steel toe shoes.2
Howell was indicted for first-degree robbery. His indictment
specifically provided:
That on or about February 17, 2007, in Kenton County,
Kentucky, the Defendant committed the offense of
ROBBERY FIRST DEGREE, a felony, when the
Defendant committed a theft, during the theft he used or
threatened the immediate use of physical force upon
another person to accomplish the theft and the defendant
caused physical injury to a person who was not a
participant in the crime, in violation of [Kentucky
Revised Statute (KRS)] 515.020 and against the dignity
of the COMMONWEALTH OF KENTUCKY.
The indictment did not allege that Howell used a dangerous
instrument or caused serious physical injury. However, at trial, Howell testified
and admitted to kicking the victim while wearing the steel toe shoes and beating
2
A second individual only known as “Baby Girl” assisted in attacking the victim with what
appeared to be brass knuckles.
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him. Near the finality of the trial, Howell’s counsel, the Commonwealth, and the
trial judge discussed the jury instructions. Howell’s counsel initially requested
instructions for fourth-degree assault, which was countered by the
Commonwealth’s request for an instruction for second-degree assault, based
primarily on the contention that Howell’s boots were a “dangerous instrument.”3, 4
The court found that the second-degree assault instruction was proper because
second-degree assault is a lesser included offense of robbery in the first degree.
Ultimately, the jury received instructions for first-degree robbery,
second-degree robbery, second-degree assault, and fourth-degree assault. Relevant
to this case are the trial court’s instructions on first-degree robbery and seconddegree assault:
INSTRUCTION NO. 4
You will find the Defendant guilty of First Degree
Robbery under this Instruction if, and only if, you believe
from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about February 17, 2007,
and before the finding of the Indictment herein, he stole
or attempted to steal personal property from [the victim];
AND
3
The trial court provided the definition of “dangerous instrument” to the jury. The court
defined the phrase as “any instrument, including parts of the human body when a serious
physical injury is a direct result of the use of that part of the human body, article, or substance
which, under the circumstance in which it is used, attempted to be used, or threatened to be used,
is readily capable of causing death or serious physical injury.” The trial court then supplied the
jury with an instruction for second-degree assault, permitting the jury to find Howell guilty if he
intentionally caused physical injury to the victim “by kicking him multiple times with a steel toe
shoe, which was readily capable of producing death or other serious physical injury.”
4
Although Howell originally claimed at trial that a dangerous instrument instruction was
improper, he does not assert this before this Court.
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B. That in the course of so doing, and with intent to
accomplish the theft, he caused physical injury to [the
victim] by kicking him.
INSTRUCTION NO. 6
If you do not find the Defendant guilty of First Degree
Robbery under Instruction No. 4, or guilty of Second
Degree Robbery under Instruction 5, you will find the
Defendant guilty of Second Degree Assault under this
Instruction if, and only if, you believe from the evidence
beyond a reasonable doubt all of the following:
A. That in this county on or about February 17, 2007 and
before the finding of the Indictment herein, he
intentionally caused physical injury to [the victim] by
kicking him multiple times with a steel-toe shoe, which
was readily capable of producing death or other serious
physical injury.
AND
B. That in so doing, he was not privileged to act in selfprotection.
The jury found Howell guilty of second-degree assault. Following the
trial, Howell moved for a new trial or judgment notwithstanding the verdict. In his
motion, Howell asserted that the instruction regarding second-degree assault was
incorrect because his steel toe boots were not dangerous instruments. The circuit
court denied his motion and a ten-year sentence of imprisonment was imposed.
Howell now appeals, contending that a second-degree assault instruction was
improper because it is not a lesser included offense of first-degree robbery.
II. STANDARD OF REVIEW
Generally, “alleged errors regarding jury instructions are considered
questions of law that we examine under a de novo standard of review.” Hamilton
v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citing Reece
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v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006)).
But, Howell concedes that he is asserting this claim for the first time in his
appellate brief, asking this Court to review it under RCr5 10.26 as palpable error.
Under the palpable error standard, this Court may only grant relief if it finds error
and if “manifest injustice has resulted from the error.” RCr 10.26. Manifest
injustice exists where the defendant can show the “probability of a different result
or error so fundamental as to threaten a defendant's entitlement to due process of
law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
III. ANALYSIS
Howell contends that although he was indicted on the charge of firstdegree robbery, he was improperly convicted of second-degree assault. He argues
that this was an error because second-degree assault is not a lesser included offense
of first-degree robbery. Accordingly, Howell claims that he had to be indicted for
second-degree assault for his conviction to be constitutionally valid. Under the
circumstances of this case, we agree.
Because the Commonwealth charged Howell with a sole count of
robbery and because there is no indication from the record that Howell waived his
right to an indictment or consented to be tried by information, the trial court could
only instruct the jury on assault if all of the elements of assault could be found
5
Kentucky Rule of Criminal Procedure.
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within the offense of robbery, i.e., if assault could be considered a “lesser-included
offense” of robbery. To make this determination, we are required to examine KRS
505.020(2):
(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; or
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or
(c) It differs from the offense charged only in the respect
that a lesser kind of culpability suffices to establish its
commission; or
(d) It 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.
As a preliminary matter, while the offenses of robbery and assault
have similar elements, assault is not always, as a general rule, merged into robbery
as a lesser included offense because the elements of each offense may differ, and
the existence of either offense may not always be established by proof of the same
facts. See Taylor v. Commonwealth, 995 S.W.2d 355, 358-60 (Ky. 1999); Polk v.
Commonwealth, 679 S.W.2d 231, 233-34 (Ky. 1984). Thus, under Taylor and
Polk, if robbery requires an element of proof that assault does not, and if assault
requires an element of proof that robbery does not, assault cannot be a lesserincluded offense of robbery.
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A person is guilty of robbery in the first degree under KRS 515.020
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.
Turning to the indictment, the Commonwealth charged that Howell
committed the offense of first degree-robbery when he
committed a theft, during the theft he used or threatened
the immediate use of physical force upon another person
to accomplish the theft and [Howell] caused physical
injury to a person who was not a participant in the crime.
...
As such, the Commonwealth necessarily indicted Howell under KRS
515.020(1)(a). This statute required the jury to find that Howell, in the course of
committing theft, used or threatened the immediate use of physical force upon
another person with intent to accomplish the theft and actually caused physical
injury to a person who was not a participant in the crime. The jury instruction
stated
You will find the Defendant guilty of First Degree
Robbery under this Instruction if, and only if, you believe
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from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about February 17, 2007,
and before the finding of the Indictment herein, he stole
or attempted to steal personal property from [the victim];
AND
B. That in the course of so doing, and with intent to
accomplish the theft, he caused physical injury to [the
victim] by kicking him.6
In contrast, a person is guilty of assault in the second degree under
KRS 508.020 when:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a
deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a
deadly weapon or a dangerous instrument.
In this regard, the jury instruction stated:
If you do not find the Defendant guilty of First Degree
Robbery under Instruction 4, or guilty of Second Degree
Robbery under Instruction 5, you will find the Defendant
guilty of Second Degree Assault under this Instruction if,
and only if, you believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about February 17, 2007 and
before the finding of the indictment herein, he
intentionally caused physical injury to [the victim] by
kicking him multiple times with a steel-toe shoe, which
was readily capable of producing death or other serious7
physical injury.
AND
6
The Commonwealth’s jury instructions abandoned the alternative requirement of “threatening
the immediate use of physical force.”
7
Here, the term “serious” is used in the context of describing the potential for steel-toed shoes to
cause such injury; it does not describe the character of any injury actually inflicted.
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B. That in so doing, he was not privileged to act in selfprotection.
As there is no indication in the indictment or either of the instructions
that the physical injury involved under these circumstances was “serious,” the trial
court necessarily included, as a lesser-included offense of KRS 515.020(1)(a),
KRS 508.020(1)(b), i.e., the trial court concluded that intentionally causing
“physical injury to any person who is not a participant in the crime” is equivalent
to intentionally causing “physical injury to another person by means of a deadly
weapon or a dangerous instrument.”
Under the circumstances of this case, the trial court erred in holding
that second-degree assault is a lesser-included offense of robbery. Here, the use of
a deadly weapon is an element particular only to KRS 508.020(1)(b), and is
ignored entirely by the plain language of KRS 515.020(1)(a). KRS 505.020(2)
cannot support the proposition that KRS 508.020(1)(b) could be a “lesser-included
offense” of KRS 515.020(1)(a) because 1) the existence of the use of a deadly
weapon must be established by proof of more of the facts required to establish the
commission of robbery; 2) the offense of assault is not the offense of attempted
robbery; and 3) because assault, under the circumstances of this case, required the
completely separate element of the use of a deadly weapon; thus, it did not differ
from robbery only in the respect that a lesser kind of culpability suffices to
establish its commission, or 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.
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The Commonwealth argues that, even if second-degree assault is not a
lesser-included offense of first-degree robbery, Howell’s conviction must still
stand because what occurred here was nothing more than a harmless variance
between the indictment and instructions and there was ample proof that Howell
committed second-degree assault. We disagree, and our reasoning is analogous to
that in O’Hara v. Commonwealth, 781 S.W.2d 514, 515 (Ky. 1989).
Howell could not have been convicted of second-degree assault by
showing he caused physical injury to another person by means of a deadly weapon
or a dangerous instrument because the indictment does not so charge. It charges
that Howell committed robbery in the first degree by committing a theft, and in so
doing, used physical force and caused physical injury. KRS 515.020(1)(a). The
indictment relied upon the injury to the victim, not the possession of a deadly
weapon, as the element which elevated the crime to robbery in the first degree.
Furthermore, the jury was not instructed that it could find Howell guilty of firstdegree robbery upon proof that in the commission of a theft Howell was armed
with a deadly weapon or dangerous instrument. Instead, it was instructed that it
could find Howell guilty of first-degree robbery if, and only if, (1) Howell stole or
attempted to steal personal property from the victim, and (2) that in the course of
so doing, and with intent to accomplish the theft, he caused physical injury to the
victim by kicking the victim. The instructions required proof of the elements listed
in KRS 515.020(1)(a). As reasoned above, these are not the same elements
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necessary for a conviction of second-degree assault under KRS 508.020(1)(b); as
such, this is not a harmless variance.
Because second-degree assault is not, under the facts of this case, a
lesser-included offense of robbery, the trial court’s instructions resulted in an
impermissible amendment of the indictment. This resulted in an erroneous
conviction of an offense not charged in the original indictment. In light of this
finding, the jury was instructed on and convicted Howell of an offense for which
he was not indicted. But for the erroneous instruction, a different result would
have been probable and manifest injustice exists as a consequence. See Martin,
207 S.W.3d 1, 3.
For the reasons as stated, the trial court erred in instructing the jury
that second-degree assault was a lesser-included offense of robbery under the
circumstances of this case. The judgment of the Kenton Circuit Court is reversed.8
ALL CONCUR.
8
The Commonwealth argues that, in the event that this Court reverses Howell’s conviction for
assault in the second degree, such a ruling would not prohibit the Commonwealth from retrying
Howell on a charge of second-degree assault because this ruling would be the result of trial error,
and not insufficiency of the evidence. In support, the Commonwealth relies upon
Commonwealth v. Davidson, 277 S.W.3d 232 (Ky. 2009), where the Supreme Court held that
double jeopardy does not bar a retrial on the same offense when
reversal is due to trial error because it does not imply the
government has failed to prove its case. Instead, trial error is a
determination that a defendant has been convicted through a
judicial process which is defective in some fundamental respect,
e.g., incorrect receipt or rejection of evidence, incorrect
instructions, or prosecutorial misconduct.
Id. at 235 (internal citations omitted; emphasis added). Here, the error involved incorrect
instructions; as such, the error was “trial error,” not “insufficiency of the evidence.”
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jamesa Joelle Drake
Assistant Public Advocate
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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