Morgan v. Com.
| Decision Date | 30 April 1987 |
| Docket Number | 86-SC-414-MR,Nos. 86-SC-249-T,s. 86-SC-249-T |
| Citation | 730 S.W.2d 935 |
| Parties | Keith MORGAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Cornelius COCHRUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Daniel T. Goyette, Public Defender, Frank W. Heft, Jr., Chief Appellate Defender, Jefferson District Public Defender, Louisville, for appellant Morgan.
Daniel T. Goyette, Public Defender, J. David Niehaus, Deputy Appellate Defender, Jefferson District Public Defender, Louisville, for appellant Cochrum.
David L. Armstrong, Atty. Gen., C. Lloyd Vest, II, Asst. Atty. Gen., Frankfort, for appellee.
The question is whether a conviction for robbery may be sustained in a case in which physical force is used against one person in order to accomplish a theft of property from another person, but where no property is taken from the person against whom the physical force is used or threatened.
These two cases arise from an incident involving a single theft of property from a household. The appellant in each of the above-styled cases participated in the theft. Each appellant was armed with a deadly weapon. The household was occupied by the owner's daughter and a friend at the time of the theft, but neither the daughter nor the friend owned any of the property taken in the theft.
Each appellant was convicted of two counts of robbery in the first degree and one count of burglary. In addition, appellant Cochrum was convicted as a persistent felony offender.
Each appellant filed a separate appeal in which only the robbery convictions were challenged.
The pertinent facts are that Keith Morgan and Cornelius Cochrum entered the residence of Linda Shaw and stole various items of household furniture therefrom. Mrs. Shaw was not at home at the time, but her daughter, Kellie Hatchett, and the daughter's friend, Keith Fowler, were present.
Once inside the house, the appellant Cochrum held Fowler at gunpoint in the living room and told him not to move or speak. The appellant Morgan proceeded into the bedroom and was followed by Kellie Hatchett. Thereupon, Morgan pulled a gun upon Hatchett, directed her to stand aside and be quiet, and began unplugging various pieces of home entertainment equipment. The appellant Cochrum later came into the bedroom and assisted Morgan in carrying the equipment out of the house.
The sole contention of the appellant Morgan, on appeal, is that no property was In Ross, three men entered a motel room occupied by three couples and the young son of one of the couples. Ross held a weapon to the head of the young boy and threatened to blow him away unless the other six occupants of the room cooperated. Ross was convicted of seven counts of robbery in the first degree, one count for each of the six adults, and one count for the robbery of the young boy.
taken from Kellie Hatchett or Keith Fowler, the persons threatened with the use of immediate physical force, and therefore they were not robbed. Although admitting that a theft occurred, he contends it was only a theft and not a robbery. Appellant Morgan cites Ross v. Commonwealth, Ky., 710 S.W.2d 229 (1986) in support of his contention. The Commonwealth admits that Ross support's appellant's contention but urges that Ross should be overruled.
This court reversed the conviction which related to robbery of the young boy because the evidence disclosed that nothing was taken from him. In effect we held that because nothing was taken from the boy, the threat of force applied against him in order to accomplish a theft from the other adults in the room did not constitute a robbery of the boy.
The appellants here are in exactly the same position as was Ross because, likewise, they took nothing of value from the two people against whom they threatened the immediate use of physical force. We have decided to re-examine the holding in Ross v. Commonwealth, supra.
Robbery is a combination of the offenses of theft and assault. To sustain a conviction for robbery, all of the elements of theft or attempted theft must be proved plus the additional element that in the course of committing theft the use or the threat of immediate use of physical force upon another person with intent to accomplish the theft.
K.R.S. 515.020 provides:
Whereas theft has always been considered to be a crime against property, the distinguishing element between theft and robbery is the additional element of the use or the threat of immediate use of physical force against a person.
The commentary accompanying the penal code may be used as an aid in the interpretation of the code. K.R.S. 500.100. The commentary in respect to Chapter 515 of the Kentucky Statutes states:
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