         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


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                                                        RENDERED: MAY 5, 2016
                                                         NOT TO BE PUBLISHED

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                                                  11 Li \._
                               2014-SC-000248-MR
                                                 DAT                          Euvii_Gos.%).4+ ;D.c.
TIMOTHY HATTON                                                         APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.              HONORABLE JAMES D. ISHMAEL, JR., JUDGE
                          NO. 13-CR-00070-002


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      The Appellant, Timothy Hatton, was convicted of first-degree robbery and

sentenced to twenty years in prison. On appeal, he claims that the trial court

erred in denying his motion for a directed verdict and in failing to instruct the

jury on theft by unlawful taking as a lesser included offense. For the reasons

explained below, this Court affirms.

                                  I. Background

      On November 28, 2012, 79-year-old Betty Curtis and her daughter

stopped at a Shell gas station in Lexington to buy lottery tickets. Her daughter

waited in the car while Curtis entered the store.. She got in line for the cash

register behind Timothy Hatton, holding her wallet, which contained credit

cards and about $375 in cash. Hatton turned around and grabbed the wallet.

Curtis tried to hold on to the wallet and called out for help, but Hatton
  succeeded in wresting it from her grasp. He ran from the store, and Curtis and

  two other customers who were waiting in line at the time, Anastassia Zikos and

 Alline Saylor, chased after him.

        Outside, Hatton ran to a nearby parked car and got in on the passenger

  side. Curtis and Zikos arrived at the vehicle before the driver, Crystal Boggess,

 could pull away. They opened the driver-side door, and Curtis positioned

 herself in the open door, trying to pull Boggess from the car, while Zikos

 reached in from outside the door and tried to remove the keys from the

 ignition. Saylor tried to open the handle-less passenger-side door, but was

 unsuccessful. (Boggess had opened the door for Hatton from the inside.)

        In the meantime, Curtis's daughter, having been roused by the

 commotion, drove her car in front of Hatton's to block its departure.

        There is some dispute over what happened next, but it is undisputed

 that, in the midst of fending off Curtis's attempts to pull her from the vehicle

 through the open driver-side door, Boggess drove the car in reverse five to

 seven feet or so and backed into an air pump. The parties dispute whether

 Boggess did this on her own accord or at Hatton's directions.

        In any event, in the process of backing up, the car's open door knocked

• Curtis to the ground and dragged her several feet. She sustained injuries to her

 head, neck, and torso, as a result.

        After Boggess knocked Curtis down and backed into the air pump, she

 drove the car forward, striking Curtis's daughter's car before escaping the

 station. Surveillance cameras captured the entire episode on video.


                                          2
       Once he and Boggess were away, Hatton removed the cash from Curtis's

wallet and threw the wallet out of the window of the fleeing car. They then

abandoned the car in the parking lot of an apartment complex, where it was

later found by police. After abandoning their car, they apparently used the

stolen cash to buy heroin.

       Hatton was eventually apprehended and prosecuted for robbery. At trial,

the jury found him guilty of first-degree robbery, and the trial court sentenced

him to twenty years in prison.' He now appeals to this Court as a matter of

right. See Ky. Const. § 110(2)(b). Additional facts will be developed as needed in

the discussion below.

                                   II. Analysis
   A. Hatton was not entitled to a directed verdict.

       Hatton first claims that the trial court erred in failing to direct a verdict

of acquittal on the first-degree robbery charge. He argues that there was no

evidence that, in the course of stealing Curtis's wallet, he "cause[d] physical

injury to any person who [wa]s not a participant in the crime," and thus cannot

be guilty of first-degree robbery under KRS 515.020(1)(a).

       When ruling on a motion for a directed verdict, a trial court "must draw

all fair and reasonable inferences from the evidence in favor of the

Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

It must "assume that the evidence for the Commonwealth is true, but reserv[e]




        I Co-defendant Boggess, who testified at Hatton's trial, pleaded guilty to
facilitation to first-degree robbery and first-degree criminal mischief and was ordered
to undergo substance-abuse treatment.
                                            3
to the jury questions as to the credibility and weight to be given such

testimony." Id. A directed verdict should not be granted "[i]f the evidence is

sufficient to induce a reasonable juror to believe beyond a reasonable doubt

that the defendant is guilty." Id. And only if the reviewing court determines

"under the evidence as a whole, it would be clearly unreasonable for a jury to

find guilt," will a defendant be entitled to a directed verdict of acquittal on

appeal. Id.

      The basic robbery offense in Kentucky is second-degree robbery, a Class

C felony. A person is guilty of that offense "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." KRS 515.030(1). The offense

bumps up to first-degree robbery, a Class B felony, when it is accompanied by

at least one of three aggravating circumstances, including where the robber

"[clauses physical injury to another person who is not a participant in the

crime." KRS 515.020(1)(a). 2

      Hatton contends that he was entitled to a directed verdict because the

evidence failed to demonstrate that he personally caused Curtis's injuries in

the course of committing the theft of her wallet. He points out that the evidence

irrefutably showed that it was the car's driver, Boggess, and not he who

inflicted Curtis's injuries by backing up while the woman was inside the open

driver-side door. Thus, he argues, it would have been clearly unreasonable for


       2 The other aggravators, which are not at issue in this case, are when the

robber "kis armed with a deadly weapon," KRS 515.020(1)(b); or "[u]ses or threatens
the immediate use of a dangerous instrument upon any person who is not a
participant in the crime," KRS 515.020(1)(c).
                                          4
a jury to find that he caused Curtis's physical injuries as required for a

conviction of first-degree robbery.

      First, it is clear that the injuries were inflicted as part of the overall

robbery, even though they occurred after Hatton snatched Curtis's wallet and

fled. The evidence here established that Hatton stole Curtis's wallet by wresting

it away from her, thus committing a robbery, i.e., theft through the use of

physical force. See KRS 515.010 (defining "physical force" as meaning "force

used upon or directed toward the body of another person").

      And the events that followed—Hatton's running from the store and

entering the waiting car, Curtis's and the witnesses' pursuit and opening of the

driver-side door to prevent his and his accomplice's escape, and Boggess's

backing up and injuring the victim—all occurred in furtherance of that robbery

and thus were part and parcel of the offense. What occurred in the immediate

flight and escape from the robbery inside the store was an extension of the

robbery, rather than a series of separate and distinct events subsequent to the

robbery. Cf. Mack v. Commonwealth,      136 S.W.3d 434, 437 (Ky. 2004) (holding

use of physical force to escape from a completed theft satisfies "in the course of

committing theft" requirement). They were necessary for the robber and his

accomplice to make their escape with the pilfered goods in their possession.

      Second, even though Hatton was not the driver, he can nevertheless be

viewed as having caused Curtis's injuries for purposes of a first-degree robbery

conviction. This Court has held that "a mere division of labor between robbers

in the commission of the crime does not preclude conviction of each as a.

principal." Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999). And, in an
                                      5
unpublished case, we have addressed facts almost identical to those in this

case. See Johnson v. Commonwealth, 2003-SC-0925-MR, 2005 WL 2045480, at

*1 (Ky. Aug. 25, 2005). In that case, the defendant snatched a bag of

prescriptions from the victim as she left a pharmacy and ran to a waiting car.

The victim followed and was injured when she tried to get her prescriptions

back and the driver of the car began to accelerate. The defendant argued, as

does Hatton, that she could not be convicted of first-degree robbery as a

principal because she did not personally cause the injury. We rejected this

claim, applying Smith's reasoning to uphold the conviction.

      And we again reject this claim here. As we noted in Smith, "No be liable,

the accused need not to have ... actually participated in any ... act of force or

violence; it is sufficient that he came and went with the robbers, was present

when the robbery was committed, and acquiesced therein." 5 S.W.3d at 129

(emphasis omitted) (quoting 67 Am. Jur. 2d, Robbery § 9 (now § 13)). Hatton

was the perpetrator of most of the robbery, and he was certainly present when

Curtis was injured (and there is evidence that he commanded Boggess to drive

when Curtis was still reaching into the car, which led to the injuries). Hatton's

participation in the robbery that resulted in Curtis's injuries was thus

sufficient to avoid a directed verdict on the count of first-degree robbery.

      In sum, there was sufficient evidence for the jury to find Hatton guilty of

first-degree robbery beyond a reasonable doubt. Accordingly, the trial court

was correct to deny his request for a directed verdict.




                                         6
   B. Hatton was not entitled to a jury instruction on the lesser
      offense of theft by unlawful taking.

       Hatton next argues that the trial court erred in refusing to instruct the

jury on theft by unlawful taking as a lesser included offense of robbery.

       A trial court should give an instruction on a lesser included offense "if

and only if on the given evidence a reasonable juror could entertain reasonable

doubt of the defendant's guilt on the greater charge, but believe beyond a

reasonable doubt that the defendant is guilty of the lesser offense." Skinner v.

Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993). In other words, "a court may

refuse to give a lesser-included offense instruction only if 'there is no room for

any possible theory except that he is guilty of the greater offense or he is

innocent."' Oakes v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (brackets

omitted) (quoting Commonwealth v. Wolford, 4 S.W.3d 534, 538-39 (Ky. 1999)).

       Here, the jury was instructed on both first- and second-degree robbery.

Robbery is ordinarily thought of as theft combined with an assault. That is,

second-degree robbery is theft plus "us[ing] or threaten[ing] the immediate use

of physical force" to accomplish the theft, KRS 515.030(1), while first-degree

robbery is second-degree robbery plus one of the three aggravating factors,

KRS 515.020(1)(a)-(c). 3 So Hatton would be entitled to a theft instruction only if

the jury could reasonably conclude that he committed theft without any

physical force, as the use or threat of force elevates the crime to at least




      3 As already noted, the only aggravating factor involved in this case is
subsection (1)(a)'s physical-injury requirement.
                                            7
second-degree robbery. Compare KRS 514.030(1)(a), with KRS 515.030(1) and

KRS 515.020(1).

      Hatton argues that because the Commonwealth bore the burden of

proving beyond a reasonable doubt every element of robbery—again, theft plus

physical force—and because the jury was free to disbelieve the proof on the

physical-force element, he was entitled to an instruction for mere theft as well.

      But, as the Commonwealth points out and the trial court correctly found

below, the problem with this argument is that there was simply no evidence

presented that the theft was accomplished without the use of some force. All of

the evidence was that Hatton stole Curtis's wallet by physically wresting it

away when she resisted his efforts to take it from her hands. By using physical

force against Curtis to remove the wallet from her grasp, Hatton's theft became

at least second-degree robbery. There was no evidence to the contrary, and it

would not have been reasonable to draw any inference to the contrary, such as

if the circumstances had been more of a pickpocket-type situation whereby the

theft was accomplished without the victim's awareness.

       "The jury is required to decide a criminal case on the evidence as

presented or reasonably deducible therefrom, not on imaginary scenarios," and

thus "a lesser-included offense instruction is available only when supported by

the evidence." White v. Commonwealth,     178 S.W.3d 470, 491 (Ky. 2006). With

Hatton having presented no evidence to support the theory that he

accomplished the theft without using force, it was nothing more than an

imaginary scenario that the jury could not have reasonably believed. It is worth

reiterating what this Court previously explained in rejecting a similar claim: "If
                                         8
a lesser-included offense instruction were necessary here, it would be

necessary in every robbery case, as the ability of the jury to disregard

uncontroverted evidence about the use of force, without a reasonable basis to

do so, would turn any robbery into a theft." Oakes, 320 S.W.3d at 59.

       Thus, the trial court was correct to deny Hatton's request for an

instruction on the lesser included offense of theft by unlawful taking.

   C. The erroneous instruction on first-degree robbery was not
      palpable error.

       Finally, although he did not expressly raise it as a separate claim of

error, implicit in Hatton's arguments on the other two alleged errors is that the

trial court erred in giving an instruction on first-degree robbery that failed to

require the jury to find that he used or threatened the immediate use of

physical force in committing the theft. While omitting this essential element

from the instruction was undoubtedly erroneous, Hatton failed to object to the

error in the trial court below, 4 and he is thus entitled only to palpable error

review. See Stewart v. Commonwealth, 306 S.W.3d 502, 508 (Ky. 2010).

Accordingly, we will reverse for this unpreserved error only if it resulted in

"manifest injustice." RCr 10.26. "[T]he required showing is probability of a

different result or error so fundamental as to threaten a defendant's



       4 Although Hatton's tendered instruction on first-degree robbery correctly

included the physical-force element, defense counsel failed to object to the trial court's
instructions when given the opportunity to do so (other than re-raising his request for
an instruction on the lesser included offense of theft by unlawful taking, discussed
above). Consequently, the error in the first-degree robbery instruction is unpreserved.
See Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995) (holding issue of
whether instruction was improper was not adequately preserved where, although
defendant tendered alternative instructions, she did not make specific objection
raising grounds on which she believed given instruction was improper).
                                             9
entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3

(Ky. 2006).

      We have little difficulty concluding the instructional error here does not

amount to palpable error requiring reversal. As made clear in the discussion

above, there was simply no evidence presented at trial to allow the jury to find

that the theft was committed without the use of any physical force. And

although the first-degree robbery instruction omitted the physical-force

element, the instruction on the lesser, second-degree offense included it. So the

jury was at least made aware of the requirement.

      In the end, the jury clearly believed Hatton was guilty of the charged

offense of robbery resulting in physical injury, and its failure to specifically find

use of physical force under the instruction given—when there was no evidence

to support finding in Hatton's favor on that element—does not change that fact.

Simply put, there is no probability of a different result or risk that the error

affected the fundamental fairness of the trial.

                                  III. Conclusion

      For the reasons set forth above, the judgment of the Fayette Circuit

Court is affirmed.

      All sitting. All concur.




                                          10
COUNSEL FOR APPELLANT:

Roy Alyette Durham II
Assistant Public Advocate
Department of Public Advocacy
5 Mill Creek Park, Suite 100
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General

Todd Dryden Ferguson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204




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