EDWARD LEE CREWS V. COMMONWEALTH OF KENTUCKY

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 19, 2013 NOT TO BE PUBLISHED $uprrittr Conti of f'bqrnfuk 2012-SC-000596-MR EDWARD LEE CREWS V. APPELLANT ON APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE NO. 11-CR-00072-001 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART, REVERSING IN PART AND REMANDING On September 26, 2010, Appellant, Edward Lee Crews, attacked Charlotte Cutter in a Kroger grocery store parking lot by grabbing her purse, which was firmly clutched in her hands. A struggle for the purse ensued, causing the elderly Ms. Cutter to be knocked to the pavement. Refusing to relinquish her purse without a fight, Ms. Cutter and Crews engaged in a tug-ofwar, each desperately grasping separate handles of the purse. Eventually, a . zipergavwy.CsthnrbedM.Cu'swaltofheprnd fled. The wallet contained several of her credit cards. As a result of the struggle, Ms. Cutter sustained an injury to her finger, as well as multiple bruises and abrasions. Some of these injuries were treated by first responders shortly after the incident. Ms. Cutter immediately described her attacker to the police and reported her credit cards as stolen. Another Kroger patron, Michael Knight, witnessed a man running across the store parking lot and later identified that man as Appellant, Edward Lee Crews. Unauthorized charges appeared on Ms. Cutter's credit card statements the morning after the robbery. She reported this information to Detective Matthew Sharp, the lead investigator on her case. After further investigation, the surveillance video from the local Walmart showed a woman making purchases with a credit card matching the last four numbers given to Walmart's loss prevention team by Detective Sharp. There was also a male suspect on the video. Some portions of the surveillance videos from both Kroger and Walmart and still shot photos developed from them were broadcast on the local television segment, Crime Stoppers. As a result of the broadcast, Detective Sharp received phone calls from citizens identifying the, suspects in the videos as Carria Harris and Crews. Soon thereafter, Harris voluntarily admitted to the police that she was the woman on the surveillance videos and that the man with her was Appellant, Edward Lee Crews. Harris testified to this at trial. She also stated that she and Crews had left Kroger together that night, but that Crews told her he needed to go back into the store. She waited for him in the car. After briefly falling asleep, Harris grew impatient and began to leave without him. As she drove away, Crews ran out of Kroger and got into the car. He informed Harris that if she would drive him to Walmart, she could "buy a few things." Crews then gave her the stolen credit cards, with which she made purchases at Walmart. 2 Crews was later arrested and indicted. A Fayette Circuit Court jury found Crews guilty of robbery in the first degree; complicity to fraudulent use of credit cards over $500.00 within a six month period; and of being a persistent felony offender ("PFO") in the first degree. The jury recommended a sentence of twelve years for the first-degree robbery conviction, enhanced to twenty years by the PFO conviction; and five years for the complicity to fraudulent use of credit cards conviction, enhanced to ten years by the PFO conviction. The trial court sentenced Crews in accord with the jury's recommendation that the two sentences be served concurrently, for a total sentence of twenty years imprisonment. Crews now appeals his judgment and sentence as a matter of right pursuant to the Ky. Const. § 110(2)(b). Several issues are raised and addressed as follows. Batson Motion For his first assignment of error, Crews contends that the trial court erred by denying his Batson motion after the Commonwealth removed a qualified juror because he was hearing-impaired. See Batson v. Kentucky, 476 U.S. 79 (1986). When determining whether the trial court erred in applying Batson, we review under the clearly erroneous standard. Gray v. Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006). Near the beginning of voir dire, Juror 4058, who was Caucasian, informed the trial court that he was having difficulty hearing. In response, the trial judge had the venireman fitted with a hearing aid issued through the Administrative Office of the Courts. The record demonstrates that this device 3 seemed to improve the juror's hearing. However, the Commonwealth exercised one of its peremptory strikes to remove Juror 4058. The U.S. Supreme Court expanded its holding in Batson to prohibit See challenging potential jurors with peremptory strikes based on gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Crews invites this Court to further expand Baston to apply to potential jurors with physical disabilities. We decline. The physically disabled are not a protected class for purposes of Equal Protection or Due Process Clauses of the Fourteenth Amendment. E.g., City of Cleburne, Tex. v. Cleburne Living Center et al., 473 U.S. 432 (1985); Bd. of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). Cases involving physical disabilities, such as hearing loss, are subject to mere rational basis review. Id. Therefore, since "[p]arties may [] exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review[,]" we find no error in the present case. See J.E.B., 511 U.S. at 143. We may not expand the protections of our federal Constitution absent a directive from the U.S. Supreme Court to do so. Moreover, we also decline to expand the protections of our own Kentucky Constitution to recognize the physically disabled as a class requiring heightened scrutiny review. See §§ 2, 7, 11. Accordingly, the trial court's denial of Crews's Batson motion was not clearly erroneous. 4 In-Court Identifications For his next argument, Crews asserts that the trial court erred by denying his two separate motions to suppress the identification of Crews by two witnesses, Charlotte Cutter and Michael Knight. Crews specifically maintains that the in-court identifications by these two witnesses were tainted by impermissible out-of-court identification procedures. We review the trial court's findings of fact on a motion to suppress for clear error, and the admissibility of evidence under an abuse of discretion standard. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004). Under this standard, we will not disturb the trial court's ruling unless it was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). The constitutionality of a challenged pre-trial identification procedure requires a two-step analysis. King, 142 S.W.3d at 649 (Ky. 2004). First, the court determines if the procedure was unduly suggestive. Id. Second, if the procedure is determined to be unduly suggestive, the identification may still be admissible if "under the totality of the circumstances the identification was reliable[.]" Id. (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972)). Charlotte Cutter Prior to trial, Crews motioned the court to suppress any testimony by Ms. Cutter identifying Crews as her attacker. In his motion, Crews asserted that Ms. Cutter's identification was first tainted by her exposure to a photo of Crews on the television segment, Crime Stoppers. Subsequent to this exposure, Detective Sharp presented Ms. Cutter with a photo lineup which included a picture of Crews. Ms. Cutter was unable to identify Crews. The detective then showed her an individual picture of Crews and told her that Kroger personnel had observed the man in the photo following her around inside the store prior to the robbery. Ms. Cutter then identified the man in the still photos as her assailant, stating that she specifically recognized his clothing. Based upon this evidence, the trial judge sustained Crews's suppression motion, finding that the identification procedure used by Detective Sharp was unduly suggestive. The court did not continue its analysis under Biggers. At trial, however, things took a new twist. Prior to Ms. Cutter being called to testify, the attorney for Crews approached the bench and stated that he wished to question the witness about the photo lineup. An extended discussion took place at the bench. The trial judge opined that this tactic by Crews's attorney opened the door for admission of the whole pre-trial identification process. The court, in essence, ruled that it would be unfair to allow Crews to pick and choose part of the process without allowing the Commonwealth to present the complete picture. Therefore, the trial court reversed its ruling as to the in-court identification. Even so, Ms. Cutter did not positively identify Crews, stating only that she recognized his eyes. Crews's counsel did not even bother to question Ms. Cutter on cross-examination about the photo identification. It appears that Crews's attorney waived the in-court identification issue by requesting to introduce the pre-trial photo lineup. Even so, if there was error on behalf of the trial court's ruling, it was harmless beyond a reasonable doubt. See Wilson v. Commonwealth, 695 S.W.2d 854, 858 (Ky. 1985) (citing Chapman v. California, 386 U.S. 18, 87 (1967)). The jury had the opportunity to observe the surveillance videos from which the disputed still shots were taken. Further, Carria Harris identified Crews as the person on the surveillance videos. Based on this evidence, as well as Ms. Cutter's ambiguous identification of Crews at trial, any error in allowing Ms. Cutter to testify regarding the identity of her attacker was harmless beyond a reasonable doubt. Michael Knight At trial, the prosecutor informed defense counsel and the judge that she was going to ask Mr. Knight to identify Crews as the man he saw running across the Kroger parking lot on the night of the incident. Crews objected, noting that Mr. Knight had never been shown a photo line-up. It was revealed, however, that Mr. Knight was shown a single photo of Crews at the prosecutor's office prior to trial. The trial court determined that this concerned the weight and credibility of Mr. Knight's testimony and, therefore, allowed Mr. Knight to identify Crews at trial. During his testimony, Mr. Knight also acknowledged that he had been shown a photo of Crews in the prosecutor's office prior to trial. Both parties argue on appeal that the analysis here is the same as the identification issue involving Ms. Cutter. Similarly, the record reveals that the 7 trial court failed to conduct the appropriate Biggers analysis. However, this error was harmless beyond a reasonable doubt for the same reasons articulated regarding the identification by Ms. Cutter. See id. Fifth Amendment Violations Crews asserts two errors in violation of his Fifth Amendment rights. Both allege that the trial court erroneously denied his motions to suppress the statements he made to the investigating detectives. Each will be discussed individually. "When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004)). Miranda Warnings First, Crews maintains that the trial court erred in denying his motion to suppress because he unequivocally asserted his right to counsel prior to the interview, yet was denied counsel. See Miranda v. Arizona, 384 U.S. 436 (1966). Following his arrest, Crews was interviewed by Detective Matthew Sharp, wherein Detective Sharp properly read Crews his Miranda rights prior to the interview and asked Crews if he understood those rights. Crews replied: "Yeah, uh, well do you think I need an attorney?" Sharp responded, "Nah." Sharp then proceeded to interview Crews. At trial, the recorded interview was not introduced into evidence. Rather, Detective Sharp testified concerning the information revealed during the interview. Specifically, Detective Sharp 8 testified only that Crews admitted some knowledge of "credit card stuff," and that the female accompanying him on the night of the incident was also involved. Crews either denied or gave no incriminating statements concerning the robbery. "[Mot every use of the word lawyer or attorney by a suspect is an invocation of the right to counsel. Bradley v. Commonwealth, 327 S.W.3d 512, 515 (Ky. 2010). "Instead, precedent clearly holds that the police must cease interrogating a suspect only if the suspect clearly and unambiguously asserts his or her right to counsel." Id. at 515-16 (internal citations omitted). However, it is obvious beyond question that Crews indeed needed a lawyer under these circumstances. It would defy common sense to believe that Detective Sharp did not know Crews needed a lawyer. Very recently, in the case of Leger v. Commonwealth, we held that lying to persons being interrogated in order to induce them to waive their rights under Miranda is not permitted. 400 S.W.3d 745 (Ky. 2013). We cannot distinguish the misrepresentation of informing a criminal defendant who is being interrogated that his statements would remain confidential, as in Leger, from misrepresenting to Crews that he did not need a lawyer. Accordingly, we hold that the confession should have been suppressed under our Leger ruling. Since no incriminating statements were made by Crews regarding the robbery, the error was harmless beyond a reasonable doubt as to that charge. As will be subsequently discussed, we are reversing Crews's conviction for complicity to fraudulent use of credit cards. In any retrial on that charge, the 9 statement taken by Detective Sharp after Crews asked if he needed a lawyer should be suppressed. Silence Crews further asserts that the trial court erred in allowing Detective Sharp to testify at trial about Crews's invocation of his right to remain silent. Detective Sharp testified that the interview with Crews was very brief and that when asked about the robbery, the interview "turned south." When the Commonwealth asked Detective Sharp what he meant by "turned south," Sharp told the jury: "[Crews] just wasn't cooperative and indicated that he didn't want to talk anymore. And when they say that, it's over." Defense counsel objected to Detective Sharp testifying to his conclusion that Crews was uncooperative, which was sustained by the trial court. At a bench conference, a second defense attorney representing Crews further objected that the Commonwealth had elicited testimony about Crews's invocation of his right to remain silent. This objection was overruled. The trial court allowed Detective Sharp to testify that the interview was terminated because of the nature of the proceedings. The Commonwealth continued its line of questioning, wherein Detective Sharp again stated that the interview with Crews became confrontational and that Crews indicated he no longer wanted to talk. The Commonwealth is prohibited, from introducing evidence or commenting in any manner on a defendant's silence once that defendant has been informed of his rights and taken into custody. E.g., Doyle v. Ohio, 426 10 U.S. 610 (1976); Hunt v. Commonwealth, 304 S.W.3d 15, 35-36 (Ky. 2009). See also Miranda, 384 U.S. at 468 n.37. In the present case, there was no impermissible comment on Crews's silence. See Hunt, 304 S.W.3d at 35-36. Moreover, "not every isolated instance referring to post-arrest silence will be reversible error." Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983) (noting that the usual situation requiring reversal is where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool). Here, Detective Sharp merely testified as to how and why the interview concluded. We find no error in admitting Detective Sharp's trial testimony. Head Shot Photo Crews next argues that the trial court erred in admitting into evidence Commonwealth's Exhibit # 5, a head shot photo of Crews. He alleges that the photo constituted a "typical mug shot pose" and was both irrelevant and unduly prejudicial. KRE 401; KRE 402; KRE 403. We have adopted a threeprong test to determine the propriety of introducing mug shot type photos at trial: (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. Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991) (citing Redd v. Commonwealth, 591 S.W.2d 704, 708 (Ky. App. 1979)). 11 The Commonwealth contends that the photo was introduced at trial to show how Crews's hair appeared near the time of the robbery. During crossexamination of Marsha Crews, Crews's wife, the Commonwealth showed her the head shot and asked if it was an accurate description of her husband's appearance at the time of the incident. She replied that it looked like him; however, she qualified her answer by stating, "He had more hair back then." Crews objected to this statement, but the objection was overruled. The trial court agreed with the Commonwealth that the photo was relevant because the witnesses' descriptions of Crews were at issue during trial. Therefore, because identity was a contested issue, the first prong adopted from Redd is satisfied. The second and third prongs are also satisfied. Crews fails to argue, and the record does not indicate, that the photo was introduced in an improper or unduly prejudicial manner. Accordingly, we find no error. Jury's Use of Laptop During Deliberations Crews now argues that the trial court erred by allowing the jury to improperly view evidence during deliberations. More specifically, the jury was allowed to view DVDs on a laptop provided by the Commonwealth. This issue is unpreserved. We may reverse only if the alleged error is palpable. RCr 10.26. During deliberations, the jury requested to view the Kroger and Walmart surveillance recordings. In response, the trial court allowed the jury to use the prosecutor's laptop to view the videos. The judge reasoned that it would be easier for the jurors to see the videos in the courtroom than in the jury room. 12 Only members of the jury were present in the courtroom when the videos were viewed. Before the use of the laptop and viewing, the trial judge admonished the jury not to navigate outside of the authorized files. We have recently held that any examination by the jury of recorded testimonial evidence must be played in open court with the parties and their attorneys present. McAtee v. Commonwealth, No. 2011-SC-000259-MR, at * 7 (Ky. Sept. 26, 2013). Therefore, the use of the laptop in those cases is amply supervised and regulated by the court. However, when the jury wishes to exclusively view non-testimonial type DVD recordings outside the supervision of the court, as occurred here, the type of device used to play the recordings becomes critical. The risk is obvious. In its cloistered deliberations, the jury might access inadmissible evidence on an unclean laptop. Two DVDs containing the surveillance video footage were properly admitted as Commonwealth's Exhibits #1 and 2. As an evidentiary matter, they were available for the jurors' review. RCr 9.72; Johnson v. Commonwealth, 34 S.W.3d 563 (Ky. 2004). Apparently, the prosecutor's laptop was the only device immediately capable of playing the videos. Crews fails to demonstrate the occurrence of improper conduct by the jurors or any actual prejudice resulting from the jurors' limited use of the laptop. The mere fact that jurors had limited access to the laptop does not create the presumption that they used it for an improper purpose. . See Tamme v. Commonwealth, 973 S.W.2d 13, 26 (Ky. 1998). In fact, the trial court 13 specifically instructed the jury that, when the Kroger video footage concluded, they were to knock on the door and an official would enter and cue the Walmart video. The jurors were allowed to pause frames and navigate within the authorized files without outside assistance. However, as previously noted, the judge instructed the jurors not to navigate outside of the authorized files. We find that this admonition was sufficient to cure any possible error. See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (a jury is presumed to have followed an admonition). The equipment available to play DVDs introduced into evidence will undoubtedly vary across the Commonwealth. In a perfect world, all DVDs intended to be introduced into evidence will be converted into a format playable in a clean and regular DVD player available to the jury. But we do not live in a perfect world. In sum, the rule of law is not discarded by simply employing pragmatic measures, so long as such measures are properly mitigated and accompanied by a proper admonition from the trial judge. Thus, we find no error requiring reversal. Directed Verdict Crews next alleges that the trial court erred in denying his motion for a directed verdict of acquittal for the offense of robbery in the first degree. We will reverse the trial court's denial of a motion for directed verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). 14 The record establishes that the Commonwealth presented sufficient evidence that would allow a jury to reasonably convict Crews. First, the victim testified that she recognized Crews's eyes as those of her attacker. Second, Mr. Knight testified that he witnessed Crews running across the parking lot. Third, Harris identified Crews as the man on the surveillance videos. She testified that Crews left her in the car during the robbery and then came running out to her as she was attempting to leave. Harris also testified That Crews had possession of the credit cards and desired to make purchases with them. Finally, the jurors were able to independently determine whether Crews was the man present in the surveillance videos. Although this evidence may have been circumstantial, "it is well settled that a jury may make reasonable inferences from such evidence." Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999) (citing Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997)); see also Sawhill, 660 S.W.2d at 4. Crews specifically argues that the Commonwealth presented insufficient evidence to establish that physical force was directed at the victim, Ms. Cutter, or that physical injury resulted. The Commonwealth did not present any photographic evidence of Ms. Cutter's injuries, and the only testimonial evidence presented regarding these injuries came from Ms. Cutter herself. We determine that this was sufficient to allow the jury to weigh the credibility of her testimony, even in the absence of additional evidence. See Ewing v. Commonwealth, 390 S.W.2d 651, 653 (Ky. 1965); see also Hubbard v. Commonwealth, 932 S.W.2d 381, 383 (Ky. App. 1996). 15 Moreover, a conviction of robbery in the first degree does not require intent to cause physical harm. Ray v. Commonwealth, 550 S.W.2d 482, 484-85 (Ky. 1977). Rather, it merely requires a showing that physical injury was caused as a result of the theft. Id.; KRS 515.020(1)(a). Reviewing the evidence as a whole, it was not clearly unreasonable for the jury to convict Crews of robbery in the first degree. We find that the trial court did not err in denying Crews's motion for a directed verdict of acquittal. Jury Instructions Crews alleges two errors involving jury instructions. First, he argues that he was entitled to a jury instruction on the offense of theft by unlawful taking, and that the trial court erred by failing to instruct on that offense. Second, he asserts that the instruction for complicity to fraudulent use of credit cards erroneously omitted essential elements of the offense of complicity. Each will be discussed in turn. Theft by Unlawful Taking Crews contends that the evidence presented at trial did not establish that physical force was used against the body of Ms. Cutter, as required by KRS 515.010 and KRS 515.020. Crews claims that force was used to grab Ms. Cutter's purse, but was never directed towards her person. Therefore, he maintains that he was entitled to a theft by unlawful taking instruction because of the alleged absence of physical force or the threat of physical force. This issue is preserved. 16 The trial court is not required to instruct the jury on a theory with no evidentiary foundation. Neal v. Commonwealth, 95 S.W.3d 843, 850 (Ky. 2003); see also Bartley v. Commonwealth, 400 S.W.3d 714, 731 (Ky. 2013) (the trial court is only required to instruct the jury on lesser-included offenses when requested and justified by the evidence). Crews did not provide any evidence at trial promoting the theory that Cutter was uninjured. Rather, he argued that this was a case of mistaken identity. For example, Crews sought to prove at trial that he could not physically run due to recent hip surgery and, therefore, could not have been the man who had committed the robbery. We agree with the Commonwealth that if the jury believed Crews's theory that someone else committed the crime, then the offense of theft by unlawful taking simply does not apply. Thus, the trial court did not err by denying Crews's request for a theft by unlawful taking instruction. Complicity to Fraudulent Use of Credit Cards In his final statement of error, Crews argues that this instruction did not require the jury to find that Crews committed any of the affirmative acts required under the complicity statute, nor did it require the jury to find that he committed those acts with the intention of promoting or facilitating the offense. KRS 502.020. Crews did not properly preserve this issue for appeal by objecting to the instruction that was presented to the jury or by tendering his own instruction to the trial court. RCr 9.54(2). However, we will apply palpable error review. Martin v. Commonwealth, 409 S.W.3d 340, 346-47 (Ky. 17 2013) (applying palpable error review to Appellant's unpreserved argument that a jury instruction was not given correctly); RCr 10.26. "In order to demonstrate an error rises to the level of a palpable error, the party claiming palpable error must show a 'probability of a different result or [an] error so fundamental as to threaten a defendant's entitlement to due process of law."' Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). Jury instructions are reviewed "as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision." Smith v. Commonwealth, 370 S.W.3d 871, 880 (Ky. 2012) (internal citations omitted). There is no evidence, and the Commonwealth does not allege, that Crews himself fraudulently passed the credit cards to the Walmart cashier. In this case, it is only through the principle of complicity that Crews could be found guilty of fraudulent use of credit cards. Jury Instruction No. 4A, as to Count 2, complicity to fraudulent use of a credit card, states in pertinent part: A. That in this county on or about September 26, 2010 and before the finding of the Indictment herein, [Crews] obtained money, goods, services, or anything else of value by use of a credit card issued to Charlotte Cutter, OR that Carria Harris obtained money, goods, services, or anything else of value by use of a credit card issued to Charlotte Cutter, with [Crews] intending that Carria Harris do so[.] (Emphasis added). 18 In Smith v. Commonwealth, we held that, "[i]n viewing the second-degree assault instruction in its totality, when read in combination with the complicity definitional instruction, we believe the charge properly informed the jury of the elements necessary to convict Appellant of second-degree assault, including the relevant intent requirements." Id. (emphasis added). Although noting that the instruction could have been phrased better, we found no error requiring reversal in Smith because part of the disputed instruction substantially mirrored the definition of complicity. Id. Accordingly, "by inference, the jury was directed to incorporate the definition of complicity into the main instruction." Id. In the present case, complicity is not defined in the main instruction, a secondary instruction, or even in the definition section of the instructions. The only reference to complicity or anything resembling the elements of complicity appears in the heading of the instruction. Similarly, the record provides no additional evidence that the trial court informed the jury of the definition of complicity consistent with KRS 502.020. For the jury to have incorporated the definition of complicity by inference in the present case, the jury would have had to possess some personal knowledge of the elements of complicity, since nothing in the instructions remotely resembles KRS 502.020. Cf. Smith, 370 S.W.3d at 880. The instructions, therefore, erroneously failed to require that Crews affirmatively acted with the intention of promoting or facilitating the commission of the offense. See KRS 502.020; see also Crawley v. Commonwealth, 107 S.W.3d 197, 200 (Ky. 2003). As worded, the instruction 19 does not even state elements of a crime upon which a jury could have convicted Crews. We conclude that this error was palpable and requires reversal of the judgment as to the conviction for complicity to fraudulent use of a credit card. Conclusion For the foregoing reasons, we affirm Crews's conviction of first-degree robbery and reverse Crews's conviction of complicity to fraudulent use of a credit card - $500.00 or more but less than $10,000.00 within a six (6) month period. We, therefore, remand this case to the trial court for further proceedings consistent with this opinion. Cunningham, Noble, Scott, and Venters, JJ., concur. Minton, C.J.; Abramson and Keller, JJ., concur in result only. COUNSEL FOR APPELLANT: Kate L. Benward Assistant Public Advocate COUNSEL FOR APPELLEE: Jack Conway Attorney General Heather Michelle Fryman Assistant Attorney General 20

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