Webb v. Com.

• Decision Date: 08 June 1995
• Docket Number: No. 94-SC-443-MR,94-SC-443-MR
• Citation: 904 S.W.2d 226
• Parties: Anthony WEBB, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 226

904 S.W.2d 226

Anthony WEBB, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-443-MR.

Supreme Court of Kentucky.

June 8, 1995.

As Modified on Denial of Rehearing Aug. 24, 1995.

Susan J. Balliet, Prospect, for appellant.

Chris Gorman, Atty. Gen., Amy F. Howard, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.

SPAIN ¹, Justice.

Appellant, Anthony Webb, was convicted by a jury of Complicity to Trafficking in a Controlled Substance in the First Degree and of being a Persistent Felony Offender in the Second Degree. His ten-year sentence was enhanced to twenty years. Webb now appeals as a matter of right.

The testimony heard by the jury presented two significantly different versions of events. The appellant testified on his own behalf. According to the appellant's theory of the case, his girlfriend, Melodie Phelps, had been introduced to Detective Steve Roberts by Gary Thompson, a confidential police informant. On November 15, 1993, Detective Roberts was working undercover in Bowling Green, Kentucky, where he was attempting to purchase drugs. Phelps and Thompson arrived at appellant's home in Thompson's car that evening. Phelps mentioned that she had to do an unspecified favor for Thompson. Apparently jealous that his girlfriend was riding around with Thompson, appellant told Phelps that he would take her in his own car to do the favor.

Phelps told appellant to take her to a parking lot in Bowling Green. Upon arrival, Thompson walked over to Detective Roberts, who was sitting in a pickup truck, and spoke with him. When Thompson returned, he handed Phelps some money, which appellant later discovered to be $150.00. Appellant then drove Phelps to an apartment complex. Phelps went inside while appellant remained in his car. When she came out, appellant asked her what she was doing; she responded that Thompson had offered to buy her a pill if she would get Thompson some pills as well. Phelps allegedly had bought four Demerol pills and two Dilaudid pills.

Though appellant knew about the pills, he drove Phelps back to the parking lot where Roberts was waiting. Appellant testified that Phelps got out, gave Roberts one Dilaudid pill, gave Thompson the four Demerol pills, and kept one Dilaudid pill for herself. Appellant asserts that he never got out of the car, never got any of the money, and never got any of the pills.

The Commonwealth presents a different version. According to Detective Roberts, he gave Phelps $50.00 so that she could purchase a Dilaudid pill for him. After she took the money, appellant drove up and they told Roberts to wait there. When Phelps and the appellant returned, Phelps got out of the car and walked away. Appellant got out of the car and motioned the detective to follow him. Roberts testified that he and the appellant entered an apartment, at which point appellant handed the detective a Dilaudid pill.

The jury was instructed on First-Degree Trafficking in a Controlled Substance, First-Degree Trafficking in a Controlled Substance by Complicity, and First-Degree Possession of a Controlled Substance. The appellant requested an instruction on criminal facilitation, under KRS 506.080, but the trial court denied this request. The jury returned a verdict on the complicity charge with a sentence of ten years.

During the sentencing phase, the jury learned of appellant's two prior convictions for theft as part of the proof for the PFO charge. Appellant filed a written motion to suppress the 1985 conviction for theft by unlawful taking. He also orally moved to suppress his 1991 conviction for second-degree burglary and theft by unlawful taking. The basis of these challenges was Boykin v. Alabama, see infra. After a hearing on this issue, the trial court overruled appellant's motion to suppress these prior convictions. The jury convicted him of PFO II. Appellant received a total sentence of twenty years.

Appellant contends that the court's refusal to provide a jury instruction on criminal facilitation was reversible error. It was a lesser-included offense for which a jury could have found him guilty. "Our law requires the court to give instructions 'applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.' " Reed v. Commonwealth, Ky., 738 S.W.2d 818, 822 (1987) (citing Lee v. Commonwealth, Ky., 329 S.W.2d 57, 60 (1959)).

KRS 506.080 provides that a person is guilty of criminal facilitation if he acts with knowledge that another person is committing a crime, and "he engages in conduct which knowingly provides such person with means or opportunity for the commission of that crime and which in fact aids such person to commit the crime." The main difference between this offense and complicity is the state of mind; complicity requires the complicitor to "intend" that the crime take place.

A complicity instruction was appropriate, where the evidence presented by the Commonwealth suggested that appellant intended that the pills be sold to Detective Roberts. However, the appellant's testimony alternatively provides ample evidence to suggest that, though he became aware of Phelps' criminal activity and provided her with transportation, he did not actually intend that the criminal transaction occur. His version of the incident, provided to the jury, presented evidence that he did not know about Phelps' criminal activity until after she had purchased the drugs. He then drove her back to the apartment. He testified that he did not accompany Phelps when she agreed to get the drugs for Roberts, nor when she purchased the drugs, nor did he deliver the Dilaudid pill to Roberts. Appellant claims he never helped plan the transaction nor received any money or other benefit from it.

In light of this evidence, a reasonable juror could believe that appellant gave Phelps a ride in his car, knowing that she was in the process of a drug transaction, but that appellant did not specifically intend that that crime be accomplished. An instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged, but conclude that he is guilty of...