             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                   RENDERED: AUGUST 25, 2016
                                                        NOT TO BE PUBLISHED

                  $uprrntr Gurt of Ifitttfur IN
                         2015-SC-000357-MR  h
                                                                2ATII lik6e eAsAA.1.4.
JOEL DAVID SEARCY                                                        APPELLANT


                     ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                    HONORABLE THOMAS L CLARK, JUDGE
                                 NO. 13-CR-1096


COMMONWEALTH OF KENTUCKY                                                  APPELLEE




                      MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

      A circuit court jury convicted Joel David Searcy of second-degree

manslaughter, first-degree robbery, and multiple counts of unlawful

imprisonment, for all of which he was sentenced to twenty-five years'

imprisonment.

      In this matter-of-right appeal from the resulting judgment', Searcy does

not challenge the validity of the manslaughter and unlawful imprisonment

convictions. He challenges only his first-degree robbery conviction. He argues

that the trial court erred by failing to direct a verdict on the robbery charge or,

alternatively, that the trial court erred by failing to instruct the jury on criminal

attempt to commit robbery as a lesser-included offense.


      1   Ky. Const. § 110(2)(b).
      We hold that the trial court did not err in declining to grant a directed

verdict on the robbery charge or in failing to instruct the jury on attempted

robbery. So we affirm the judgment below.


                 I. FACTUAL AND PROCEDURAL BACKGROUND.

      Searcy contends that a paranoid-delusional episode brought on by his

active methamphetamine addiction explains his conduct on the day in

question. On that day, Searcy drove his childhood friend, Mahailey Harrod, and

her children to a doctor's appointment. On the way back home, they drove past

the mobile-home park where Searcy worked, and he became paranoid after

seeing people there. He believed people were out to get him, and his goal then

became to not stop the car. When forced to stop at an intersection, Searcy

snapped. He believed a man on a moped behind him reached for a gun to shoot

him. He accelerated and rammed a truck in front of him. The terrified Harrod

demanded that he stop the car so that she and her children could exit. When

he stopped, he took off running into the road, waving his arms and calling for

help. An elderly man, later identified as Donald Cooke, stopped his car and

Searcy got in.

      The two took off down the road, with Cooke driving and Searcy crouching

in the passenger seat to avoid detection. After Cooke turned onto the same

street where Searcy's former heroin dealer lived, Searcy became increasingly

paranoid. He grabbed the steering wheel, and a struggle ensued. Cooke's car

ended up in a nearby parking lot, with Searcy and Cooke fighting for control of

the car. Searcy threw Cooke from the driver's side door, tossed Cooke's oxygen

                                         2
tank tossed on top of him, and launched his small dog through the car window.

Some eyewitnesses approached the scene, and Searcy jumped out of the car

and ran down the street. He was apprehended moments later.

      Cooke was 82 years old at the time of the scuffle. On arrival at the

hospital, his admitting physician found Cooke had a punctured lung,

numerous bruises, and was in respiratory failure. He was sedated and placed

on a ventilator, but he never regained consciousness. Cooke died a little over a

week after he was admitted to the hospital. An autopsy revealed that the cause

of death was subdural hematoma and multisystem organ failure as a result of

blunt impacts to the trunk and extremities, rib fractures, and pneumothorax.

      Searcy was indicted on one count of capital murder, one count of robbery

and four counts of first-degree unlawful imprisonment. He was later convicted

on one count of second-degree manslaughter, one count of first-degree robbery,

and five counts of second-degree unlawful imprisonment. He was sentenced to

a total term of twenty-five years' imprisonment.


                                    II. ANALYSIS.

   A. Searcy was not Entitled to a Directed Verdict.

      Searcy contends that the trial court should have granted a directed

verdict in his favor for the first-degree robbery charge. He claims that his

actions were out of a legitimate fear for his life—no matter the fact that they

were simply methamphetamine-induced paranoia—and that he did not wield

the criminal intent permanently to deprive Cooke of his automobile. Searcy




                                         3
points to his escape on foot shortly after Cooke was ejected from the vehicle as

proof that he did not intend to commit a theft at all.

      The Due Process Clause of the Fourteenth Amendment "protects the

accused against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged." 2 On

denial of a directed verdict, our analysis is whether, under the evidence as a

whole, it would be clearly unreasonable for the jury to find Searcy guilty. 3 We

construe all evidence below in a light most favorable to the Commonwealth. 4

                                                                                 Underthisaofvw,erctainSywsoeldta

directed verdict.

      The Kentucky Penal Code contemplates a variety of forms of criminal

activity that may qualify as first-degree robbery. The statute defines that

crimes as follows:

      (1) A person is guilty of robbery in the first degree when, in the
         course of committing theft, he uses or threatens the immediate
         use of physical force upon another person with intent to
         accomplish the theft and when he:
            a. Causes physical injury to any person who is not a
               participant in the crime;
            b. Is armed with a deadly weapon; or
            c. Uses or threatens the immediate use of a dangerous
               instrument upon any person who is not a participant of
               the crime. 5




      2   In re Winship, 397 U.S. 358, 364 (1970).
    3 See Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001). See also

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
      4   See Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).
      5   KRS 515.020.

                                            4
      The first-degree robbery statute thus contains several elements, each of

which must be met before a defendant may be convicted of the crime. But of

those elements, Searcy only questions his subjective intent to commit a theft of

Cooke's property. He alleges that he did not intend necessarily to steal the

vehicle, evidenced by his decision to flee the scene on foot shortly after Cooke

was ejected from the car. He additionally hypothesizes that he could not have

the requisite intent to steal based on his drug-induced paranoia and the

resulting fear he had for his own life at the time of the incident.

      Searcy offers no evidence in support of his claim that he did not intend to

take Cooke's vehicle. Quite the opposite, there is ample evidence in the record

to support the inference that he in fact did intend to commit a theft. The

Commonwealth appropriately points to Searcy's statements to a law-

enforcement officer that he was going to get in the driver's seat and drive

Cooke's vehicle after he was pushed out of the car. A witness testified that

Cooke said Searcy was trying to take his car. Searcy had Cooke's keys in his

possession when he was apprehended. We think there is ample evidence for a

reasonable jury to conclude Searcy was guilty of first-degree robbery.

      We are unprepared today to allow a defendant's drug-fueled paranoia to

insulate him from the realities of his actions. It is beyond dispute Searcy and

Cooke were engaged in a struggle for control of Cooke's vehicle. Searcy used

physical force to gain control of the car. It matters not why he felt he needed to

control the car—whether he delusionally feared for his life or if he simply

wished to have Cooke's car for his own. What does matter is that he
intentionally engaged in a course of physical actions that culminated in him

forcefully expelling Cooke from the vehicle (and ultimately killing him), so

Searcy could presumably take the car for his own use—whatever his subjective

goals may have been. We have no trouble agreeing that any reasonable jury

could convict Searcy under these circumstances. So we accordingly conclude

that he was not entitled to a directed-verdict for this offense.

   B. Searcy Was Not Entitled to an Attempted Robbery Instruction.

      Searcy next argues that the trial court erroneously refused to instruct

the jury on attempted robbery as a lesser-included offense of first-degree

robbery. At trial, Searcy's counsel tendered an instruction for first-degree

criminal attempt to commit a robbery. The trial court rejected this instruction

and included criminal-attempt language in its instruction for first-degree

robbery. Searcy contends there was ample evidence for a jury to find he was

guilty only of attempting to steal Cooke's vehicle by concluding that he failed to

actually steal the car. We disagree.

      Under Kentucky Rules of Criminal Procedure (RCr) 9.54, a trial court

must instruct the jury on the whole law of the case. Likewise, in Manning v.

Commonwealth, we held that the trial court must instruct on every theory of

the case reasonably deducible from the evidence. 6 And most recently, we held

that "Each party to an action is entitled to an instruction upon his theory of

the case if there is evidence to sustain it."' On appellate review of a trial court's



      6   See 23 S.W.3d 610, 614 (Ky. 2000).
      7   Sargent v. Schaffer, 467 S.W.3d 198, 203 (Ky. 2015).

                                            6
                                                                           v
refusal to give an instruction we "must ask ourselves, construing the e idence

favorably to the proponent of the instruction, whether the evidence would

permit a reasonable juror to make the finding the instruction authorizes." 8 The

trial court's decision is reviewed for an abuse of discretion, reversing only upon

a finding that the court's ruling was "arbitrary, unreasonable, unfair, or

unsupported by sound legal principles." 9

      The Kentucky Penal Code contemplates the possibility of criminal

attempts to perform acts designated criminal within the code. In Kentucky, one

is guilty of an attempted crime when, consistent with the kind of intent

otherwise required for the commission of the crime, he "intentionally does or

omits to do anything which, under the circumstances and he believes them to

be, is a substantial step in the course of conduct planned to culminate in his

commission of the crime." 10

      The Commonwealth's primary justification for the trial court's ruling on

this issue is that it used a model instruction for first-degree robbery from

Cooper's treatise on model juror instructions, and that model instruction

includes criminal-attempt language to instruct on this crime itself. The

instruction given to the jury in the instant case, is stated as follows:

                                 First-Degree Robbery




      8   Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013).
      9   Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
      10   KRS 506.010(1)(b).

                                           7
             You will find the Defendant guilty of First-Degree Robbery
       under this instruction if, and only if, you believe from the evidence
       beyond a reasonable doubt all of the following:

       A. That in this county on or about August 1, 2013, and before the
          finding of the Indictment herein, he stole or attempted to steal
          a car from Donald Cooke; AND
       B. That in the course of doing so and with intent to accomplish the
          theft, he caused a physical injury to Donald Cooke by using
          physical force.

It is therefore the Commonwealth's position that Searcy's theory of attempted

robbery was incorporated in the larger first-degree robbery instruction and

supported the possibility that the jury may conclude that he only attempted to

steal Cooke's vehicle to support a conviction for first-degree robbery. And sure

enough, under Kentucky law one may in fact be guilty of first-degree robbery

without succeeding in forceful theft—the criminal intent to permanently

deprive another of their property is sufficient. 11

       As we discussed above, we are comfortable with the notion that a

reasonable jury could determine beyond a reasonable doubt that Searcy was

guilty of first-degree robbery despite the fact that he did not physically drive

away with Cooke's vehicle. Likewise, we are confident that the trial court did

not abuse its discretion in refusing him an instruction for attempted robbery.

Searcy used physical force against Cooke to seize control of the vehicle—he

intended to deprive Cooke of the use of his automobile and in fact




       11See Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010) ("A defendant who
uses physical force with the requisite intent is guilty of robbery regardless of whether
any of the property intended to be taken is in fact taken.") (referring to Kirkland v.
Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001)).

                                            8
accomplished that goal, finding himself in possession of the keys to the vehicle

at the end of the altercation. Because there is ample evidence to conclude that

Searcy actually completed the crime, the trial court acted reasonably in

deducing that criminal attempt is unavailable under these circumstances.

Because we conclude that Searcy was not entitled to a criminal-attempt

instruction, we hold that the trial court did not abuse its discretion by refusing

to instruct the jury on that lesser offense.


                               III.      CONCLUSION.

      For the foregoing reasons, we affirm the trial court's judgment.

All sitting. All concur.



COUNSEL FOR APPELLANT:

Julia Karol Pearson
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General




                                          9
