Commonwealth of Kentucky v. Kenneth Lamont Boone, Jr.

• Court: Kentucky Supreme Court
• Decided: September 21, 2022
• Docket: 2021 SC 0494
• Status: Unknown

Opinion

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

2 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 4 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.

5 “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

6 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

7 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.

8 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