Marshall v. Com., 80-SC-100-MR
| Decision Date | 03 November 1981 |
| Docket Number | No. 80-SC-100-MR,80-SC-100-MR |
| Citation | 625 S.W.2d 581 |
| Parties | Mark MARSHALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Mark Marshall appeals from a judgment convicting him of first-degree robbery (10 years), possession of a handgun by a convicted felon (3 years), possession of a controlled substance (1 year), first-degree wanton endangerment (3 years), and being a first-degree persistent felony offender (20 years). See respectively KRS 515.020, 527.040, 218A.140, 508.060, and 532.080.
The facts of the case are set forth in Hayes v. Commonwealth, Ky., 625 S.W.2d 583, decided today.
Marshall's first contention is that his conviction for first-degree robbery and first-degree wanton endangerment violate the constitutional and statutory prohibitions against double jeopardy, viz., a robbery committed with the use of a pistol and first-degree wanton endangerment emanating from pointing the pistol at a person during the course of the robbery. We agree, as the evidence showed that the pistol was used by Marshall to threaten or coerce the employees and customers in the pharmacy to move to the rear and was being flourished while taking the money and narcotics. This was all one act or transaction-the perpetration of a robbery. The act of pointing a gun at certain persons prior to the seizure of loot which gave rise to the wanton endangerment charge was in reality a part of the elements of the robbery act. It was an included offense within the purview of KRS 505.020. The two acts merged, and under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), followed in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), the first-degree wanton endangerment charge must be dismissed.
Marshall's next point is that he should not have been convicted of illegally possessing a controlled substance taken in the course of the robbery for which he was convicted. The same point was made in Hayes, supra, and was decided to the contrary.
A further claim of error is that the evidence was insufficient to sustain appellant's conviction for being a first-degree persistent felony offender. He maintains that the prosecution failed to prove that the judgment in a prior conviction had...
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