GARRY R. SWAN V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : JUNE 16, 2011
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GARRY R. SWAN
ON APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Appellant Garry R. Swan appeals from a judgment of the Henderson
Circuit Court, finding him guilty of complicity to first-degree robbery and firstdegree persistent felony offender (PFO I) . The jury recommended, and the trial
court imposed, a sentence of 10 years' imprisonment, enhanced to 20 years by
virtue of the PFO I conviction . He therefore appeals to this Court as a matter of
right.' We conclude that reversible error occurred with respect to the trial
court's jury instruction on complicity to first-degree robbery.
In September 2009, Appellant was driving his SUV from his home in
Manatee County, Florida to Washington, Indiana . He was accompanied by his
wife Cynthia Swan and his friends Mickey McGuire and Andrew LeRose . The
' KY. CONST. § 110(b)(2).
purpose of the trip was apparently to gain custody of Cynthia's son, who
resided in Indiana. At some point during the trip, a decision was made to rob a
bank. The group stopped for the night at a Super 8 Motel in Henderson,
That night, the group made plans for a bank robbery . LeRose testified
that McGuire and Appellant picked out a Fifth Third Bank branch in
Henderson that would be the target . According to LeRose, he, McGuire, and
Appellant drove to Wal-Mart in Henderson to purchase disguises . LeRose
waited in the vehicle while McGuire and Appellant went inside. A still photo
from a Wal-Mart video surveillance camera showed McGuire and Appellant
together in the store's Halloween section .
The next morning, according to LeRose, the group cleaned out the motel
room to eliminate physical evidence, and then drove across the Ohio River into
Evansville, Indiana. Along the way, the group threw over the bridge two bags of
garbage (including garbage from the motel), which the Henderson Police
Department later recovered . The group proceeded into Evansville, and dropped
off Cynthia Swan at a Burger King restaurant . According to LeRose, the plan
was for Cynthia to call the police and report the SUV stolen if the men did not
return within an hour.
The three men drove back to Henderson, with Appellant driving. They
pulled into an apartment complex to write robbery notes. Next, Appellant
drove to a gas station, where he was to wait as LeRose and McGuire robbed the
bank. At that point, LeRose backed out, and remained with Appellant, leading
McGuire to rob the bank alone .
McGuire walked into the bank, wearing sunglasses, a blonde wig, and a
baseball cap . He passed Terra Hurtle, the bank teller, a note demanding her
$100 and $20 bills, with no dye packs. Hurtle began handing McGuire cash
from her drawer. McGuire noticed a bank manager using the telephone, and
told Hurtle to hurry because he had a gun, while motioning to the front of his
pants. As McGuire left, and the manager stepped out of his office, McGuire
told the manager to get back in his office, because he (McGuire) had a gun .
After the robbery, police discovered a pistol-type BB gun in Appellant's SUV,
near a document bearing McGuire's name .
After McGuire had completed the robbery, he returned to the gas station,
and the men drove toward Evansville, Indiana, throwing their disguises over
the Ohio River bridge along the way. McGuire gave LeRose and Appellant
$1,000 each. The men then proceeded to the Burger King in Evansville to pick
up Cynthia. Appellant gave his $1,000 to Cynthia, which police would later
find in her purse . Upon pulling out of the Burger King parking lot, the
Evansville Police Department, which had been informed of the robbery, stopped
Appellant's SUV. McGuire fled, but was eventually apprehended. Police
arrested all four occupants of the vehicle .
Appellant was indicted for first-degree robbery, as a principal and under
a theory of complicity, and for PFO I . Cynthia Swan was also indicted and tried
jointly with her husband, but the jury ultimately acquitted her of all charges .
LeRose, who had accepted a plea agreement, testified for the Commonwealth.
Appellant also testified, claiming that he was an unwilling participant in
the robbery. According to Appellant, McGuire threatened him with the BB gun
(which Appellant believed to be a real gun at the time) and forced him to
participate in the robbery by driving to and from the bank . Appellant explained
that McGuire stole the wig used in the robbery without his (Appellant's)
knowledge . Appellant also stated that he tried to get away from McGuire when
McGuire left the vehicle to rob the bank, but that McGuire was able to catch up
with the SUV. Appellant explained that his wife was dropped off in Evansville
after he begged McGuire to leave her out of the robbery .
After the presentation of all evidence, the trial court determined that
there was insufficient evidence to instruct the jury on first-degree robbery with
Appellant as the principal actor. The jury was instructed on first-degree
robbery only under a theory of complicity .2 Instruction No. 2, as prepared by
the trial court and submitted to the jury, read :
You will find the Defendant, Garry R. Swan, guilty of
Complicity to First Degree Robbery under this
Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the
That in this county on or about September 21,
2009, Mickie McGuire stole U.S . Currency from Fifth
2 See KRS 515.020 (first-degree robbery) ; KRS 502 .020(1) (complicity as to a criminal
That in the course of doing so and with intent to
accomplish the theft, Mickie McGuire used or
threatened the immediate use of physical force upon
Terra Hurtle or another bank employee ;
That he used or threatened the immediate use of
a dangerous instrument, as defined in Instruction No.
4, upon any person who was not a participant in the
That the Defendant, Garry Swan, with the
intention of promoting or facilitating the commission of
the theft, solicited or engaged in a conspiracy with
Mickie McGuire to commit the offense and/or aided or
attempted to aid Mickie McGuire in planning or
committing the offense.3
Appellant also tendered jury instructions, which included a definition of
complicity as it is defined in KRS 502 .020(1) and in Cooper and Cetrulo,
Kentucky Instructions to Juries, Criminal § 10.01 . 4 The trial court ruled that
the definition of complicity was implicit in its instruction, and therefore
Appellant's definition was not needed . In the course of its deliberations, the
jury sent a note to the court, asking for the "legal definition of complicity [and]
facilitation ." The court informed the jury that it could not provide any
definition beyond what was contained in the instructions .
3 Emphasis added.
4 Appellant's proposed definition of complicity stated :
Complicity: Means that a person is guilty of an offense committed by
another person when, the intention [sic] of promoting or facilitating the
commission of the offense, he solicits, commands, or engages in a
conspiracy with such other person to commit the offense, or aids,
counsels, or attempts to aid such person in planning or committing the
Shortly thereafter, the jury returned a verdict finding Appellant guilty of
complicity to first-degree robbery, followed by a penalty phase in which the jury
found Appellant guilty of PFO I . This appeal followed .
Appellant argues that Instruction No . 2 was deficient . We begin by
noting that a trial court has a duty "to instruct the jury on the whole law of the
case ." 5 With respect to complicity, we note that complicity is not an additional
or different offense from the primary offense . 6 Rather, "complicity constitutes
guilt of the primary offense itself, making complicity an alternate means of
committing an offense as opposed to a distinct crime ." 7
We agree with Appellant that Instruction No. 2 was erroneous . Crawley
v. Commonwealth addressed the requirements for a jury instruction on
complicity to first-degree robbery:
Robbery requires not only the element of an intent to
accomplish a theft, but also the element of the use or
threat of immediate use of physical force upon the
victim. KRS 515 Thus, the instruction also
should have required that Appellant, as an accomplice,
intended that the principal use or threaten the
immediate use of physical force upon the victim.
Often, this element of intent is satisfied by giving a
separate instruction defining complicity .$
5 Thomas v. Commonwealth, 170 S.W .3d 343, 348-49 (Ky. 2005) .
6 See Commonwealth v. McKenzie, 214 S .W.3d 306, 307 (Ky. 2007) ; Commonwealth v.
Caswell, 614 S .W .2d 253, 254 (Ky. App. 1981) .
7 Cooper and Cetrulo, KENTUCKY INSTRUCTIONS TO JURIES, Criminal § 10.01 cmt.
8 107 S.W.3d 197, 200 (Ky. 2003) . But see Commonwealth v. Yeager, 599 S .W.2d 458
(Ky. 1980) (holding that a defendant is guilty of complicity to first-degree robbery
where he intended that the offense of robbery be committed, regardless of whether
he intended the aggravating circumstance, e .g., the use of a gun) .
In Crawley, the defendant's jury was instructed on the definition of complicity ;
however, the definition as written did not require the jury to find that the
defendant acted with the intention of promoting or facilitating the commission
of the robbery. 9 This Court gave a recommended definition of complicity for
use on remand, which was substantially similar to the one proposed by
Appellant in this case . t o
In the instant case, the error in Instruction No . 2 occurred in Part D,
which required the jury to find that Appellant acted "with the intention of
promoting or facilitating the commission of the theft . . . ." 11 This instruction
did not require the jury to find that Appellant, as an accomplice, intended that
the principal (McGuire) use or threaten the immediate use of physical force
upon the victim .
To be guilty of an offense under a theory of complicity as to a criminal
act, a defendant must act "with the intention of promoting or facilitating the
9 The instruction in Crawley erroneously required only a reckless mental state for the
defendant to be guilty by complicity, thereby negating the requirement of intent :
"Complicity means that a person is guilty of an offense committed by
another person when, while acting recklessly with regards to another's
conduct, he solicits, commands, or engages in a conspiracy with such
other person to engage in that conduct, or aids, counsels, or attempts to
aid such person in planning or committing such conduct."
107 S.W.3d at 200 (emphasis in Crawley) .
to The recommended definition read :
"A person is guilty of an offense committed by another person when, with
the intention ofpromoting orfacilitating the commission of the offense, he
solicits, commands, or engages in a conspiracy with such other person to
commit the offense, or aids, counsels, or attempts to aid such person in
planning or committing the offense."
Id. (emphasis in Crawley) .
Emphasis added .
commission of the offense[ .]" 12 Instruction No. 2 required the jury to find only
that Appellant intended to promote or facilitate one element of the offense, i .e.,
the theft . Therefore, the instruction was erroneous .
However, we disagree with Appellant that the only solution to this error
is a separate definition of complicity. Regarding complicity to robbery, Crawley
states, "Often, this element of intent is satisfied by giving a separate instruction
defining complicity." 13 Crawley does not require a separate instruction defining
Comp lic ity. 14 It is perfectly acceptable, particularly in a case such as this
where the evidence only supported conviction through a theory of complicity, to
integrate the definition of complicity into the jury instruction for the offense .
There would have been no error had Part D of Instruction No . 2 read,
"That the Defendant, Garry Swan, with the intention of promoting or
facilitating the commission of the offense, solicited or engaged in a conspiracy
with Mickie McGuire to commit the offense and/or aided or attempted to aid
Mickie McGuire in planning or committing the offense ." 15 The instructional
error was in not requiring the jury to find that Appellant intended that McGuire
KRS 502 .020(l) (emphasis added).
13 107 S .W.3d at 200 (emphasis added).
14 Though Cooper's offers a definition
of complicity, the accompanying commentary
seems to discourage its use: "The instructions should describe the conduct of the
defendant constituting complicity, obviating the necessity of the definition in the
instructions ." Cooper and Cetrulo, KENTUCKY INSTRUCTIONS TO JURIES, Criminal §
is See Crawley, 107 S .W .3d at 200 . Emphasis is added here for
clarity, and would
obviously not be required in the jury instruction on remand . Additionally, we note
that the trial court omitted the "commands" and "counsels" language found in KRS
502.020(1) and in the Crawley model instruction . We assume that the trial court
determined that the evidence did not support the inclusion of these terms in this
use or threaten the immediate use of physical force upon the victim . There is
no error in integrating a proper complicity instruction, as opposed to providing
a separate definition of complicity . Either approach can be proper.
Having determined that Instruction No . 2 was erroneous, we must
determine whether the error was harmless . "In this jurisdiction it is a rule of
longstanding and frequent repetition that erroneous instructions to the jury are
presumed to be prejudicial ; that an appellee claiming harmless error bears the
burden of showing affirmatively that no prejudice resulted from the error ." 16
Here, the Commonwealth has not met its heavy burden . Instruction No . 2 did
not require proof that Appellant intended that McGuire accomplish a theft by
using or threatening the immediate use ofphysicalforce upon the victim (the
element which elevates a theft to a robbery) . Rather, Instruction No. 2
required proof only that Appellant intended that McGuire commit a theft.
Robbery is a much more serious crime than theft. 17
Thus, Instruction No. 2 erroneously omitted an essential element of the
offense, an error which must be harmless beyond a reasonable doubt. 18 We
cannot safely say that the error did not contribute to Appellant being convicted
of a greater offense than the instruction required the Commonwealth to prove .
McKinney v. Heisel, 947 S.W .2d 32, 35 (Ky. 1997) . See also Harp v. Commonwealth,
266 S .W.3d 813, 818 (Ky. 2008) (reaffirming McKinney) .
Compare KRS 515 .020 (Robbery in the first degree, a Class B felony, with a penalty
range of 10 to 20 years' imprisonment) and KRS 514 .030(2) (theft by unlawful
taking or disposition where the value of the property is over $500, a Class D felony,
with a penalty range of 1 to 5 years' imprisonment) .
18 See Stewart v. Commonwealth, 306 S .W.3d 502, 508 (Ky. 2010) (citing Neder v.
United States, 527 U.S . 1, 2 (1999)) .
In light of Appellant's defense that he was forced by McGuire to participate,
and in light of the fact that the jury acquitted Cynthia Swan of all charges and
imposed the minimum sentence upon Appellant, we cannot say that the error
was harmless beyond a reasonable doubt. Therefore, we must reverse .
Finally, Appellant also argues that the Commonwealth failed to disclose,
prior to trial, statements made by the Commonwealth's witness Andrew
LeRose, in violation of RCr 7 .26 . This error, if it was error, is unlikely to recur
on remand. Appellant is highly unlikely to suffer prejudice from unfair
surprise if LeRose offers the same testimony upon retrial . Therefore, the issue
For the foregoing reasons, the judgment of the Henderson Circuit Court
is reversed . The case is hereby remanded for proceedings consistent with this
All sitting. All concur.
COUNSEL FOR APPELLANT:
Dax Ryan Womack
304 First Street
P .O . Box 637
Henderson, KY 42419-0637
COUNSEL FOR APPELLEE:
Joshua D . Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204