FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN LAPE, JUDGE
ACTION NO. 15-CR-00394-002
FOR APPELLANT: Stephen J. Buck Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky M.
Brandon Roberts Assistant Attorney General Frankfort,
BEFORE: DIXON, JOHNSON, AND MAZE, JUDGES.
28, 2015, a Kenton County grand jury returned an indictment
charging William Wayne Stephenson, Jr. with one count each of
first-degree possession of a controlled substance, possession
of drug paraphernalia, and theft of identity. Stephenson was
later charged with being a persistent felony offender in the
first degree (PFO I). Following a trial, the jury acquitted
Stephenson of the possession charges, but convicted him of
theft of identity. The jury fixed his sentence at five
years' imprisonment, enhanced to fifteen years by virtue
of his status as a PFO I. The trial court imposed the
jury's sentence, and Stephenson now appeals from this
argues that the trial court erred by denying his motion for
an instruction on giving a false name to a peace officer as a
lesser-included offense to theft of identity. We agree,
concluding that the false-name charge is a lesser-included
offense to theft of identity, and the evidence in this case
supported an instruction on both charges. Furthermore, we
agree that the trial court erred when it allowed the
Commonwealth Attorney to testify why he charged Stephenson
with theft of identity rather than giving a false name.
Therefore, we must vacate his convictions for theft of
identity and PFO I, and remand this matter for a new trial.
charges in this case arose from a traffic stop which occurred
on April 2, 2015. Prior to the stop, Covington Police Officer
Gideon Craymer was observing two residences when he noticed
someone sitting in a vehicle parked in front of one of the
residences. Officer Craymer saw a person make several trips
from the house to the car, confer with the individual inside,
and then return to the house. On his last trip out, the
second individual handed something to the passenger, then got
in the vehicle and drove away. Officer Craymer later
identified Stephenson as the passenger, and Raymond Klette as
the driver and the person making trips to and from the house.
vehicle drove away, Officer Craymer saw it make a turn
without signaling. He contacted another officer, Officer
Justin Schmidt, to stop the vehicle. Officer Craymer arrived
shortly thereafter. After stopping the vehicle, Officer
Schmidt asked the occupants to identify themselves. While
Klette accurately identified himself, Stephenson identified
himself as David Randle Reeves, and gave a birthdate of
February 1, 1981.
officers became suspicious because Stephenson hesitated
before giving the birth year. In addition, Officer Craymer
was unable to locate any information for a person named David
Randle Reeves with a birthdate of February 1, 1981. Officer
Craymer warned Stephenson that giving a false name was a
crime, but Stephenson again provided the same name and gave a
partial social security number.
determining that Stephenson was lying, Officer Craymer
removed Stephenson from the car and placed him under arrest.
At that point, Stephenson gave Officer Craymer his true name
and birthdate. Stephenson told Officer Craymer that David
Reeves is his brother, but he was not sure of the birth year.
Stephenson also explained that he gave the false name because
he had an outstanding arrest warrant.
a search of the vehicle, the officers found a bag and a spoon
with cocaine residue. Stephenson and Klette were both charged
and jointly tried on the charges of possession of a
controlled substance and possession of drug paraphernalia.
The trial court denied Stephenson's request to instruct
the jury on the offense of giving a false name to a peace
officer in addition to the instruction on theft of identity.
Stephenson first argues that he was entitled to the
instruction because giving a false name is a lesser-included
offense to theft of identity.
Commonwealth responds that Stephenson failed to preserve this
specific issue. We disagree. Stephenson's counsel
tendered an instruction on giving a peace officer a false
name. Counsel asked the court for the instruction in addition
to the identity-theft charge. While counsel did not use the
term "lesser-included offense, " the court
interpreted it as such, holding that giving a false name is
not a lesser-included offense to identity theft. We conclude
that Stephenson adequately preserved the issue for appeal.
denying the requested instruction, the trial court relied on
Crouch v. Commonwealth, 323 S.W.3d 668 (Ky. 2010).
In Crouch, the defendant was charged with identity
theft, but moved to amend the charge to giving a peace
officer a false name. Our Supreme Court held that a trial
court lacks jurisdiction to change a valid indictment except
as provided by RCr 6.16. The Rule permits a court to amend an
indictment when an "additional or different offense is
charged and if substantial rights of the defendant are not
prejudiced." Since amending the felony identity-theft
charge to the misdemeanor charge of giving a false name to a
peace officer would have resulted in ...