FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON,
JUDGE ACTION NO. 15-CR-000823-002
FOR APPELLANT: Joshua M. Reho Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Leilani K.M. Martin Assistant Attorney General Frankfort,
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
appeal arises from a judgment of the Jefferson Circuit Court
convicting the Appellant, Jeffrey Stine, of first-degree
robbery and theft by unlawful taking over $500. As the record
shows, the trial court correctly denied defense counsel's
request to include the jury instruction of second-degree
robbery. Furthermore, we find no palpable error resulted from
the trial court's combining of the first-degree robbery
instructions. However, we must conclude that Stine's
convictions for robbery and theft arising from the same
single incident violate his rights against double jeopardy.
Hence, we affirm on his conviction for first-degree robbery,
but reverse his conviction for theft by unlawful taking over
and Procedural History
facts concerning how the robbery occurred are contested
between Stine, his co-defendants, and the victim. However, it
is agreed that, on January 11, 2015, Stine, Robert Morris,
and Courtney Pound traveled to a restaurant on Dixie Highway
in Jefferson County to meet Jesus Arrieta, Jr. Pound stated
that she was going there to buy marijuana, but Stine and
Morris stated that the plan was to rob Arrieta.
accordance with their plan, Pound drove Stine and Morris to
the restaurant. Stine and Morris got out of the car and hid
behind a dumpster. Pound backed the car into a parking space
near the dumpster and waited. When Arrieta arrived at the
restaurant, he approached Pound's car and tried to open
the door. While the details of the robbery are contested,
Arrietta was choked, struck on the back of the head, and
stabbed in the thigh. Arrietta was left at the scene, but his
wallet, cell phone, personal items, and vehicle were stolen.
Arrieta was hospitalized for several days after the incident.
Arrieta required blood transfusions, physical therapy, and at
least one major surgery to correct an embolism that occurred
as a result of the stab wound.
a Jefferson County grand jury indicted Stine on counts of
complicity to first-degree robbery, first-degree assault, and
theft by unlawful taking over $500. The grand jury charged
Pound with complicity to first-degree robbery in the same
indictment. Pound later entered a guilty plea to her charge.
Morris was separately indicted for complicity to first-degree
robbery and complicity to first-degree assault, to which he
later pleaded guilty.
trial, Morris confessed to holding Arrieta from behind and
demanding that he turn over his possessions. However, Morris
and Stine each blamed the other for the stabbing. Arrieta
testified that "the man with the face tattoos"
(Stine) could have been the one who hit him, but he did not
see who it was. Arrieta then testified that he heard Stine
say, "I got everything, just stab him . . . [, ]"
just before he was stabbed and the assailants fled the scene.
jury deliberations at the trial, defense counsel requested
the inclusion of a second-degree robbery instruction. The
trial court denied the request, only providing the jury with
an instruction for first-degree robbery, and theft by
unlawful taking over $500. The jury convicted Stine of both
first-degree robbery and theft by unlawful taking over $500,
but acquitted him of assault. The jury recommended a sentence
of fourteen years for the first-degree robbery, and five
years for the theft by unlawful taking over $500, to run
concurrently for a total of fourteen years. The trial court
sentenced Stine in accord with the jury's recommendation.
appeal, Stine raises three arguments. First, he argues that
the trial court erred by denying his request to instruct the
jury on second-degree robbery. Second, he contends that the
trial court erred on the first-degree robbery instruction by
combining two jury findings into a single element. And third,
he argues that his conviction for both first-degree robbery
and theft by unlawful taking over $500 violates his rights
against double jeopardy.
court's decision not to provide a requested jury
instruction is reviewed under the "reasonable
juror" standard. Springfield v. Commonwealth,
410 S.W.3d 589, 594 (Ky. 2013). We typically do not
characterize our review under this standard as either de
novo or for abuse of discretion. Id. Rather,
"[c]onstruing the evidence favorably to the proponent of
the instruction, we ask whether the evidence would permit a
reasonable juror to make the finding the instruction
authorizes." Id. (quoting Allen v.
Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011).
However, the content of jury instructions is an issue of law
that remains subject to de novo review by this
Court. Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky.