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Stine v. Commonwealth

Court of Appeals of Kentucky

December 21, 2018

JEFFREY STINE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 15-CR-000823-002

          BRIEFS FOR APPELLANT: Joshua M. Reho Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K.M. Martin Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE

         This 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 $500.

         Facts and Procedural History

         Some 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.

         In 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.

         Subsequently, 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.

         At 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.

         Before 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.

         On 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.

         Standard of Review

         A trial 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. 2015). ...


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