Commonwealth of Kentucky v. Kenneth Lamont Boone, Jr. ( 2022 )

RENDERED: SEPTEMBER 22, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0494-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0966
FAYETTE CIRCUIT COURT NO. 16-CR-00383
KENNETH LAMONT BOONE, JR. APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING AND REMANDING
The Commonwealth appeals from a decision of the Court of Appeals
reversing Kenneth Boone’s convictions in Fayette Circuit Court for theft of
identity and being a persistent felony offender in the first degree (PFO I). The
Commonwealth argues the trial court did not err in refusing to give an
instruction for the misdemeanor offense of giving a peace officer false
identifying information. Following a careful review of the briefs, the record, and
the law, we reverse.
In February 2016, Boone was the driver of a vehicle stopped by police.
Boone told Detective Christopher Pope from the narcotics enforcement unit of
the Lexington Police Department that his driver’s license was suspended and
he lacked identification. He gave his name as “Daniel Wharton” with a
birthdate of April 17, 1993. The detective warned that giving false information
to a law enforcement officer was a crime, but Boone persisted in providing the
detective with Wharton’s information. Following a search, Boone was arrested
and charged with a felony offense, possession of a controlled substance in the
first degree; a misdemeanor offense, operating on a suspended or revoked
operator’s license; and a violation, failure to illuminate rear license. Later,
after it was learned at the jail he was not Daniel Wharton, Boone was also
indicted for an additional felony offense, theft of identity, and for being a PFO I.
Boone lost two suppression hearings challenging the validity of his traffic
stop. Subsequently, the possession charge was severed, and Boone was tried
by a jury on the remaining charges. At the close of evidence, Boone requested
the trial court instruct the jury on the offense of giving a peace officer false
identifying information. During discussion of the jury instructions, the trial
court noted the form instruction book indicated giving a peace officer false
identifying information is not a lesser-included offense of theft of identity.
Boone contended the logic of a Court of Appeals opinion, Stephenson v.
Commonwealth, No. 2016-CA-00013-MR, 2017 WL 5907976, at *3 (Ky. App.
Dec. 1, 2017), an opinion depublished by this Court in its denial of
discretionary review on March 14, 2018, entitled him to a lesser-included
instruction. The Commonwealth countered pointing to a discussion in Crouch
v. Commonwealth, 323 S.W.3d 668 (Ky. 2010), standing for the opposite
proposition that giving a peace officer false identifying information is not a
lesser-included offense, but a separate, distinct charge with an additional fact
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needing to be proved. The trial court denied Boone’s requested instruction.
Boone was found guilty of all charges and was sentenced to an aggregate term
of ten years’ imprisonment.1
Boone appealed. The Court of Appeals affirmed the validity of the traffic
stop and the resulting convictions for possession of a controlled substance,
operating on a suspended or revoked operator’s license, and failure to
illuminate rear license. However, the Court of Appeals agreed with Boone that
the trial court erred by failing to instruct the jury on the misdemeanor offense
of giving a peace officer false identifying information as a lesser-included
offense to the theft of identity charge and reversed as to that conviction.
KRS2 505.020(2) specifies whether a charge constitutes a lesser-included
offense. The statute provides:
(2) A defendant may be convicted of an offense that is included in
any offense with which he is formally charged. An offense is so
included when:
(a) It is established by proof of the same or less than all the facts
required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to
commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a
lesser kind of culpability suffices to establish its commission; or
(d) It differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property or
public interest suffices to establish its commission.
(Emphasis added).
1 Boone eventually pled guilty to the severed possession of a controlled
substance charge and was sentenced to one year to run concurrently with the ten-year
sentence for the other charges.
2 Kentucky Revised Statutes.
3
The felony offense of theft of identity is governed by KRS 514.160, which
provides, in pertinent part:
(1) A person is guilty of the theft of the identity of another when he
or she knowingly possesses or uses any current or former
identifying information of the other person or family member or
ancestor of the other person, such as that person's or family
member's or ancestor's name, address, telephone number,
electronic mail address, Social Security number, driver's license
number, birth date, personal identification number or code,
and any other information which could be used to identify the
person, including unique biometric data, with the intent to
represent that he or she is the other person for the purpose of:
....
(d) Avoiding detection . . . .
The misdemeanor crime of giving a peace officer false identifying information,
which Boone asserts is a lesser-included offense, is governed by KRS
523.110(1), which provides:
A person is guilty of giving a peace officer false identifying
information when he or she gives a false name, address, or date
of birth to a peace officer who has asked for the same in the
lawful discharge of his or her official duties with the intent to
mislead the officer as to his or her identity. The provisions of
this section shall not apply unless the peace officer has first
warned the person whose identification he or she is seeking
that giving a peace officer false identifying information is a
criminal offense.
Other than the requirement of a warning for giving a peace officer false
identifying information, the two crimes are very similar.
The Court of Appeals reasoned the added requirement of a warning was
merely a prerequisite, rather than an element, of the misdemeanor crime.
Under this theory, which is the same theory found in Stephenson, giving a
peace officer false identifying information purportedly could be regarded as a
lesser-included offense containing the same or fewer number of elements
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pursuant to KRS 505.020(2)(a), rather than containing an additional element
and constituting a distinct or unrelated offense to theft of identity. This appeal
by the Commonwealth follows. Boone did not appeal, so the only issue before
us is whether the misdemeanor instruction was required.
The Commonwealth contends the trial court properly refused to instruct
the jury on the offense of giving a peace officer false identifying information.
Specifically, it argues that comparing the elements of the offense of theft of
identity with the elements of giving a peace officer false identifying information
confirms Boone was not entitled to a lesser-included instruction because the
misdemeanor offense had an additional element the felony offense did not
contain. Thus, the Commonwealth maintains the Court of Appeals’ contrary
holding is not persuasive, arguing it is inconsistent with this Court’s decision
in Crouch.
We review the trial court’s decision not to give a jury instruction for
abuse of discretion. Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2009);
Sargent v. Shaffer, 467 S.W.3d 198, 202-03 (Ky. 2015) (overruled on other
grounds by University Medical Center, Inc. v. Shwab, 628 S.W.3d 112 (Ky.
2021)) (noticing and discussing some confusion over the proper standard of
review to use). “Under the familiar standard prescribed in Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999), a trial court abuses its discretion
when its decision is arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Id. at 203.
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“A defendant is entitled to an instruction on any lawful defense which he
has.” Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006) (quoting Slaven
v. Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997)). And while a “lesser
included offense is not a defense within the technical meaning of those terms
as used in the penal code, it is, in fact and principle, a defense against the
higher charge.” Id. “An instruction on a lesser included offense is required
only if, considering the totality of the evidence, the jury might have a
reasonable doubt as to the defendant's guilt of the greater offense and, yet,
believe beyond a reasonable doubt that he is guilty of the lesser offense.”
Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998) (citing Wombles v.
Commonwealth, 831 S.W.2d 172, 175 (Ky. 1992)).
Kentucky courts determine whether a charge is a lesser-included offense
by comparing the facts necessary to prove guilt for both offenses. “[I]f the
lesser offense requires proof of a fact not required to prove the greater offense,
then the lesser offense is not included in the greater offense, but is simply a
separate, uncharged offense.” Hudson, 202 S.W.3d at 20-21 (quoting Colwell v.
Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000)). In other words, a lesser
included offense is one which includes proof of the same or fewer facts than for
the primary offense. Commonwealth v. Day, 983 S.W.2d 505, 509 (Ky. 1999).
The trial court properly performed its analysis, reasoning that the lesser
offense of giving false identifying information to a peace officer requires proof of
an aspect that theft of identity does not. While the felony crime of identity theft
and the misdemeanor offense of giving false information to a police officer are
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quite similar, the latter requires additional proof of a warning by a peace
officer. As such, pursuant to KRS 505.020(2)(a), giving false information to a
peace officer is not a lesser-included offense to theft of identity. Therefore, the
trial court acted properly and did not abuse its discretion when it chose not to
give jury instructions to a lesser, not-included offense.
Boone and the Court of Appeals’ panel make much of a legal theory and
distinction espoused in Stephenson that the requirement of a warning by a
peace officer is merely a prerequisite, not an element, of the offense of giving
false identifying information. For purpose of determining whether the aforesaid
misdemeanor qualifies as a lesser-included offense vis-à-vis the said felony, the
Court of Appeals justified its characterization of a warning as a “prerequisite”
rather than an element of the misdemeanor by reasoning “[g]enerally, elements
of a criminal offense mandate what conduct the defendant must engage in to
commit that offense.” Boone v. Commonwealth, No. 2019-CA-0966, 2021 WL
3572864, at *6 (Ky. App. Aug. 13, 2022) (emphasis in original). Because the
warning the peace officer must give is conduct the defendant has no control
over, the Court of Appeals concluded the required warning is not an element of
the misdemeanor. In so doing, the Court of Appeals identified no authority in
support of its holding except for Stephenson, 2017 WL 5907976, at *3, which
itself cited no precedent.
We note there are, in fact, crimes in Kentucky that a criminal can be
convicted of based on the conduct of others. For example, the crimes of fleeing
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or evading police in the first degree3 and fleeing or evading police in the second
degree4 have the same mental states—knowing or wanton—and both require
direction to stop by a person recognized to be an officer. The crime of burglary
in the first degree5 can include conduct of a third-party as a statutory element
of the offense. “The plain language of the statute makes clear that in order for
the licensee to ‘know’ his license has been revoked, the owner of the building or
one with authority must ‘personally communicate[]’ the revocation to the
licensee.” Lewis v. Commonwealth, 392 S.W.3d 917, 920-21 (Ky. 2013). For
this reason, the Court of Appeals’ holding that elements of a crime must be
conduct within the defendant’s control is unpersuasive and we reject any such
distinction.
KRS 505.020(2) governs what is a lesser-included offense and mentions
neither “element” nor “prerequisite.” The plain language of KRS 505.020(2)
sets out that a lesser-included offense “is established by proof of the same or
less than all the facts required to establish the commission of the offense
charged.”6 It is abundantly clear the requirement of a warning by a peace
officer is a fact required to be established for the misdemeanor crime that is not
3 KRS 520.095.
4 KRS 520.100.
5 KRS 511.020.
6 The statute mentions lesser-included offenses also can consist of attempts to
commit the offenses charged or otherwise included, lesser kinds of culpability
sufficient to establish their commission, or differences in a less serious injury or risk
of injury to the same person, property or public interest sufficient to establish their
commission, none of which apply in the case at hand.
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contained in the elements required for a charge of theft of identity. Therefore,
giving a peace officer false information is not a lesser-included offense of theft
of identity. The Court of Appeals erred in so holding.
For the foregoing reasons, the decision of the Court of Appeals is
reversed and the matter is remanded to that court for further proceedings
consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel Cameron
Attorney General of Kentucky
Courtney E. Albini
Assistant Solicitor General
COUNSEL FOR APPELLEE:
Aaron Reed Baker
Assistant Public Advocate
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