RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0612-MR
COURTNEY JACKSON APPELLANT
APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 24-CR-00244
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND A. JONES, JUDGES.
CALDWELL, JUDGE: Courtney Jackson (“Jackson”) appeals her conviction for identity theft. We affirm.
BACKGROUND
Jackson was indicted, in July of 2024, for theft of identity, possession of a controlled substance in the first degree (methamphetamine), possession of drug paraphernalia, and alcohol intoxication in a public place.
The indictment stemmed from events that took place on June 19, 2024, when Barren County Deputy Sheriff Terrill Riley was dispatched to a residence in response to a report of a domestic altercation. There, Deputy Riley encountered Jackson, who told him that she had earlier been in a verbal altercation with her mother. When asked to identify herself, Jackson gave Deputy Riley the name of her sister, Shelby Horton. She could not provide the deputy with any identification and told him that she did not know her Social Security number. Jackson provided the deputy with a date of birth but quickly revised it, correcting the birth year to two years later than she originally advised. Deputy Riley questioned Jackson regarding blood on her hands, which she told him was a result of her falling and was unrelated to the argument with her mother. He also questioned Jackson about her consumption of alcohol that day, after telling her that he smelled alcohol on her breath.
Deputy Riley requested a record check from dispatch, and he learned that Shelby Horton had an outstanding arrest warrant. Additionally, dispatch provided him with an image of a photo ID for Horton. After he received this, he
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asked Jackson for her address, and the one she provided matched that on Horton’s photo ID. Deputy Riley then showed Jackson the image of the photo ID for Horton from his phone, and she identified the photograph as one of herself. The deputy then arrested Jackson and placed her in his cruiser.
Following the arrest, Deputy Riley drove to the nearby home of Jackson’s mother and advised Jackson he was going to speak with Jackson’s mother before proceeding to the jail. After speaking to Jackson’s mother at her home, Deputy Riley learned Jackson’s real identity. He then went back out to his cruiser and asked Jackson for her real name. Jackson continued to assert that she was Shelby Horton. Deputy Riley then asked if her name was really Courtney Jackson. Rather than responding to the inquiry, Jackson asked who had told him that.
Following this conversation, Deputy Riley then contacted dispatch again and requested a record check for Courtney Jackson. Once he received a photo of Courtney Jackson from dispatch, he confirmed that this was, in fact, the person he had just arrested. Additionally, at this point, the deputy learned that Jackson had five outstanding arrest warrants.
Before she was driven to the jail, Jackson was shown a purse that had been found inside her mother’s house and questioned her about it. After Jackson said it belonged to her, Deputy Riley searched the contents of the purse and found
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a syringe that contained a liquid substance. A contemporaneous field test and later forensic analysis would both identify the substance as containing methamphetamine.
Following the indictment, the matter proceeded to a trial by jury.
On the morning of trial, the trial court held a conference for the parties to present any motions they wished to be considered prior to voir dire. A Trial Order described the motion which is the subject of this appeal: “Immediately prior to trial, the Commonwealth moved the Court not to instruct the jury on the charge of giving a peace officer false identifying information as requested by the Defendant, arguing that such charge is not a lesser-included offense of theft of identity of another. The Court sustained the motion.1” (Record on Appeal, “R”, p. 78).
At the conclusion of the trial, the jury found Jackson guilty of theft of identity of another without consent and recommended the maximum term of a five- year prison sentence.2 The trial court sentenced Jackson in accordance with the jury’s recommendation.
This direct appeal follows.
1 The trial court included a footnote here citing Commonwealth v. Boone, 653 S.W.3d 593, 598 (Ky. 2022). 2 The jury did not reach a verdict on the charge of possession of a controlled substance in the first degree (methamphetamine). The misdemeanor offenses of possession of drug paraphernalia and alcohol intoxication in a public place were voluntarily dismissed by the Commonwealth prior to trial.
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Preservation and Standard of Review Jackson appeals on a single issue, alleging in her brief that the trial court erred in “failing to provide the alternate instruction of KRS[3] 523.110” that she had submitted. Where the issue is properly preserved, and the trial court’s decision is not based upon an assessment of the facts, but rather its assessment of the law, we review denial of a requested jury instruction de novo. Conyers v. Commonwealth, 530 S.W.3d 413, 424 (Ky. 2017).
In her Appellant brief, however, Jackson submits that the issue was only “partially preserved.” The Commonwealth’s Appellee brief argues that we should not review the merits of the issue because “Jackson has waived any issue about the jury instructions by agreeing with the trial court that Boone precluded a lesser-included-offense jury instruction on giving false information to a peace officer.” The Commonwealth further argues that the ruling of the trial court is correct and supported by Commonwealth v. Boone.
Jackson Did Not Waive the Alternate Instruction Issue Entirely At the conference on the first day of trial, the prosecutor argued that Jackson’s proposed instruction for the jury to consider KRS 523.110 (giving false information to a peace officer) as a lesser-included offense of identity theft was precluded by Boone. Following the Commonwealth’s initial argument, the trial
3 Kentucky Revised Statutes.
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judge stated he had read proposed instructions that Jackson had submitted the prior evening which included the lesser-included offense instruction and was inclined to agree that it should be excluded. The judge reasoned that, under Boone, the offense of giving a peace officer false information contained an additional element that was not required to be proven in identity theft, and that, as a matter of definition then, it was not a lesser-included offense of identity theft. Jackson’s defense counsel responded only with “Yes, your honor.” Jackson does not contend that she made any objection or argument on the issue during any subsequent discussion before the trial court regarding jury instructions, before the court’s instructions were read to the jury.
A recording of this conference is in the video record and there is no dispute that Jackson did submit an alternate instruction under KRS 523.110 to the trial court. However, none of her proposed jury instructions, including the alternate instruction, were made a part of the written record. Furthermore, Jackson concedes that defense counsel failed to provide any argument in support of the alternate instruction when the Commonwealth objected to it. She requests palpable error review under RCr4 10.26.
The Commonwealth contends that the statement by defense counsel was an explicit agreement with the trial court that Boone precluded submission to
4 Kentucky Rules of Criminal Procedure.
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the jury of the proposed alternate instruction. The Commonwealth asserts that this waived the issue entirely and requests that we refrain from any review of Jackson’s argument on its merits.
RCr 9.54(2) mandates that:
No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
Id.
The rule has been interpreted by our Supreme Court thusly:
Under the plain language of the rule, a party can preserve his objection to jury instructions in one of three alternative ways: (1) by offering an instruction; (2) by motion; or (3) by making a specific objection before the court instructs the jury. The rule does not require any additional objection or filing so long as one of these three is satisfied.
Jerome v. Commonwealth, 653 S.W.3d 81, 85 (Ky. 2022) (citation omitted).
In Jerome, the defendant submitted proposed jury instructions to the trial court “that included burglary in the third degree as a lesser-included offense of burglary in the first degree.” Id. at 85. While the defendant “did not specifically object to the trial court’s failure to instruct the jury on the offense of burglary in the third degree, he did generally object to the trial court’s refusal to use his
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proposed jury instructions and to its failure to instruct the jury on ‘other lesser- included’ offenses.” Id.
While the proposed jury instructions that Jackson submitted do not appear in the written record, there is no dispute that she did submit proposed instructions that included a proposed alternate instruction. “Fundamental to the concept of preservation of trial error in any context is that the trial judge was explicitly made aware of the action desired by the party.” Smith v. Commonwealth, 410 S.W.3d 160, 169 (Ky. 2013). And while Jackson made no general objection to the trial court’s refusal to use the proposed instruction, we cannot conclude that the statement “Yes, your honor” by defense counsel was a “knowing relinquishment of any right to the lesser-included-offense instruction” as argued by the Commonwealth.
“[I]nvited errors that amount to a waiver, i.e., invitations that reflect the party’s knowing relinquishment of a right, are not subject to appellate review.” Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011). An express agreement with jury instructions has been determined to waive the ability to later challenge those instructions on appeal. Sanchez v. Commonwealth, 680 S.W.3d 911, 930 (Ky. 2023). The Commonwealth points only to this statement in support of its assertion that Jackson had knowingly abandoned any right she might have to the requested instruction. However, upon our review of the record, we cannot say
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defense counsel’s statement of “Yes, your honor” was an express agreement with the trial court’s legal reasoning; the statement appears consistent with a respectful acknowledgment by counsel that the trial court had made its decision.
Aside from the statement and failure to assert a formal objection by defense counsel, the Commonwealth points to nothing in the record which might indicate, for instance, that Jackson intentionally abandoned the alternate instruction that she had proposed as a matter of strategy. We are unable to conclude that the statement of defense counsel amounted to Jackson having “affirmatively propos[ed] [the] instruction that contain[ed] the very defect [s]he now opposes[,]” and thus, invited the error. Quisenberry, 336 S.W.3d at 37-38. Given that our Supreme Court “has held that an argument regarding the failure to give a certain jury instruction is preserved by the party’s tendering of the requested instruction to the trial court without requiring anything more[,]” we do not view Jackson as having waived the issue of an alternate instruction entirely. Jerome, 653 S.W.3d at 85 (citing Elery v. Commonwealth, 368 S.W.3d 78, 89 (Ky. 2012); Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023)) (issues which are not raised to the trial court at all and are thus unpreserved are forfeited rather than waived).
Jackson requests palpable error review for the “part of her argument”
that was not properly preserved. She does not identify what portion of her argument this is. It is unnecessary to parse the issue of preservation further in an
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attempt to determine whether Jackson forfeited the whole issue or some sub-issue.5 Any conclusions we might reach in that inquiry would have no bearing on the ultimate result of our decision today. Under an abuse of discretion, de novo, or palpable error standard of review, Jackson cannot demonstrate the trial court made any error in denying, pursuant to Boone, her request for a lesser-included offense instruction.
The Trial Court Did Not Commit Reversible Error by Excluding Jackson’s Proposed Lesser-Included Offense Instruction.
Jackson contends “[t]he trial court erred in failing to provide the alternate instruction of KRS 523.110[,]” for the jury to consider convicting her under this misdemeanor offense, rather than the felony offense she was indicted for under KRS 514.160.
Although Jackson’s proposed instruction is not before us, it is apparent from the record that she proposed the misdemeanor instruction for giving false information to a peace officer as a lesser-included offense to the identity theft charge. “[A] defendant is entitled to an instruction on any lawful defense which he has, including instructions on lesser-included offenses.” Jerome, 653 S.W.3d at 86
5 Jackson was not required to make the same supportive arguments to the trial court to preserve the issue. See Gasaway, 671 S.W.3d 313-14 (internal quotation marks and citations omitted). (“Allegations of error (also known as issues, claims, or questions) are supported by arguments. Once a claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.”).
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(citing Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011), Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006)) (internal quotation marks omitted).
The trial court clearly based its decision upon the decision of our Supreme Court in Boone. In that case, Boone had provided the name and date of birth of another person to a police officer during a traffic stop. 653 S.W.3d at 595. After being warned that it was a crime to provide false information to law enforcement, Boone continued to represent himself as the other person. Id. After his true identity was discovered, he was charged with theft of identity, among other offenses. Id. During his jury trial, Boone requested the trial court instruct the jury on the offense of giving a peace officer false identifying information. Id. The trial court denied the request on the grounds that giving a peace officer false identifying information is not a lesser-included offense of theft of identity. Id.
As Jackson acknowledges, Boone directly addressed the question of whether providing a peace officer with false identifying information, as outlined in KRS 523.110, constitutes a lesser-included offense of theft of identity, as specified in KRS 514.160. 653 S.W.3d at 596-97. The Court unambiguously held that “giving a peace officer false information is not a lesser-included offense of theft of identity.” Id. at 598 (emphasis added).
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In reaching its decision, the Boone Court emphasized that the determination of whether a charge constitutes a lesser-included offense is laid out in KRS 505.020(2). 653 S.W.3d at 595.
KRS 505.020(2)(a)-(d) list instances that an offense is included within the offense a defendant is formally charged with. These occur 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.
KRS 505.020(2)(a)-(d).
The Boone Court then looked at the statutes for the relevant offenses.
653 S.W.3d at 596. Those statutes were the same as here, with precisely the same subsections at issue:
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
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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.
Boone, 653 S.W.3d at 596.
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The Boone Court noted that a determination of whether a charge is a lesser-included offense, pursuant to KRS 505.020(2)(a),6 required a comparison of the facts necessary to prove guilt for both offenses. 653 S.W.3d at 597. The Court reasoned that a prior warning by a peace officer was a fact that was required to be established for the misdemeanor offense under KRS 523.110(1) but was not present among the elements required for a felony charge under KRS 514.160(1)(d). 653 S.W.3d at 596. “[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.” Id. at 597 (quoting Hudson, 202 S.W.3d at 20-21 and Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000)). Accordingly, the Court concluded that, pursuant to KRS 505.020(2)(a), the misdemeanor did not qualify as a lesser-included offense and it was not an abuse of its discretion for the trial court to deny requesting to instruct on KRS 523.110. 653 S.W.3d at 597.
Jackson concedes that the facts in Boone are “nearly identical” to those of her own case. Furthermore, she cites no specific legal authority that might provide some avenue for this Court to determine Boone was somehow inapplicable to her proposed jury instruction.
6 The Boone Court discerned none of KRS 505.020(2)(b)-(d) to be applicable to the case. 653 S.W.3d at 598.
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Nonetheless, Jackson’s brief contends “one key question remains unanswered after Boone: ‘Does the prosecutor’s decision to arbitrarily charge the felony offense mean the accused is always precluded from asserting a reasonable defense of giving a peace officer false identifying information?’” Jackson emphasizes the similarities between the two statutes and points out that her actions might have been subject to prosecution under either the misdemeanor or felony offense. Jackson reasons that it is fundamentally unfair for the issue of whether her behavior merited a misdemeanor or felony conviction to not be submitted to the jury. Jackson makes general allegations that application of Boone by the trial court served to deny her the right to a fair trial and violated her due process rights.
We are bound to follow our Supreme Court’s precedent. Boone is now established law in Kentucky; we are required to follow it. None of the arguments Jackson presents requesting we depart from this precedent compel us to render an opinion inconsistent with Boone. Moreover, Jackson has raised no question that is unanswered by Boone when viewed alongside other established Kentucky precedent.
Before addressing the specific points of discussion raised in Jackson’s arguments, we will first address their central premise which is plainly revealed in the “key question” she articulates. Jackson maintains that to charge her with the felony offense, rather than the also-applicable misdemeanor, when there is no
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demonstrable measure of increased culpability, can only have been an arbitrary decision by the prosecution. In response, the Commonwealth argues that the charging decision of the prosecutor was not arbitrary and argues that evidence in the case demonstrated that a more serious offense was justified. The Commonwealth points to the evidence that Jackson had five outstanding warrants for her arrest, and so gave a false name, birth date and address to a police officer to avoid detection. The Commonwealth points out that Jackson continued to do so even after being warned that providing false information was a crime.
Jackson cites no authority or evidence to credit her allegation of an arbitrary prosecutorial decision by the Commonwealth. An unsupported allegation of an arbitrary prosecutorial decision has little direct bearing on the issue of jury instructions. Furthermore, Jackson was indicted for the violation of KRS 514.160 by a Barren County Grand Jury. “[T]he choice of which—if any—offenses for which an indictment should be returned is a matter within the province of the grand jury . . . a prosecutor does not have unfettered discretion to charge a defendant on a whim.” Crouch v. Commonwealth, 323 S.W.3d 668, 673 (Ky. 2010); see also Fields v. Com., 219 S.W.3d 742, 748–49 (Ky. 2007) (“[I]t is the indictment which determines the initial scope of the trial and only a Grand Jury may indict . . . [a]nd, [i]f the same act may constitute either two offenses, or if a single act is common to
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two offenses, the Grand Jury may elect to indictment on either.”) (internal quotation marks and citations omitted).
Moreover, there is certainly no distinction which might be drawn from Boone. As in this case, Boone was prosecuted for violation of KRS 514.160, and not for KRS 523.110, when his same actions met the requirements for a violation of either statute. 653 S.W.3d at 596.
Scrutinizing Jackson’s argument, it is difficult to locate any real dispute in the record that Boone was inapplicable to her proposed alternate instruction. Rather, she argues that Boone “limits the defense counsel’s ability to argue that [Jackson’s] conduct was more in line with what the misdemeanor covers” and that, “[w]ithout this opportunity to discuss mitigation, [Jackson] and other similarly situated defendants are denied their right to a fair trial.”
Jackson complains that the Legislature enacted a statute defining a Class D felony covering the same conduct as a previously existing misdemeanor but left the lesser offense with an extra requirement of an officer’s prior warning. Her brief laments that the statutory scheme, combined with Boone, “leaves defendants with no defense or way to argue that their conduct does not meet the heightened severity of a felony[.]”
Jackson contends that “the holding in Boone created the unintended consequence” of foreclosing from the jury consideration of whether a conviction
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under the misdemeanor would be more appropriate than the felony. It is unclear whether it is the Boone Court or the Legislature that Jackson contends did not intend to foreclose such consideration. Jackson points to no evidence or authority regarding the legislature’s intent when it passed KRS 514.160 with KRS 523.110 still viable.
Jackson’s complaints that a jury could have found her guilty of either offense, without more, do not provide her with a meritorious argument that she was entitled to an alternate instruction. “[T]he fact that the evidence would support a guilty verdict on a lesser uncharged offense does not entitle a defendant to an instruction on that offense.” Conyers, 530 S.W.3d at 424 (quoting Hudson, 202 S.W.3d at 21).
Jackson essentially concedes the applicability of Boone, and that KRS 523.110 is a separate and uncharged offense, but argues that the trial court should have, nonetheless, included it as an alternate instruction. “An instruction on a separate, uncharged, but [not lesser-included] crime—in other words, an alternative theory of the crime—is required only when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive.” Fields v. Commonwealth, 219 S.W.3d 742, 750 (Ky. 2007) (quoting Hudson, 202 S.W.3d at 22).
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Pursuant to Hudson, a determination of whether the trial court erred in not providing an instruction on KRS 523.110 as an alternative theory of the crime turns upon a determination of whether being guilty of identity theft is mutually exclusive of providing an officer with false identifying information. Id.
KRS 505.020(1) addresses when a defendant may be prosecuted for multiple offenses for a single course of conduct. McNeil v. Commonwealth, 468 S.W.3d 858, 867 (Ky. 2015).
And, of course, the offenses here would be mutually exclusive if being convicted of both would result in a double-jeopardy violation. In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the United States Supreme Court articulated a test to resolve double-jeopardy claims arising from multiple offenses. The Court discerned that “[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S. Ct. 180. While the Blockburger test itself is one way to determine whether one offense is included in another, the test is incorporated into KRS 505.020. Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996).
Application of the test demonstrates that Jackson was not entitled to an instruction under KRS 523.110 as a separate, uncharged, but not lesser-included
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crime. Fields, 219 S.W.3d at 750. It is established by Boone that the misdemeanor offense here requires proof of a fact which the felony offense does not. KRS 523.110 would require the Commonwealth to prove that Jackson first received a warning by a peace officer—“a fact required to be established for the misdemeanor crime that is not contained in the elements required for a charge of theft of identity.” Boone, 653 S.W.3d at 598. However, Boone does not explicitly identify a fact required for the felony offense that is not required for the misdemeanor offense and the Court noted that, “[o]ther than the requirement of a warning for giving a peace officer false identifying information, the two crimes are very similar.” 653 S.W.3d at 595–96. Nevertheless, the presence of an extra requirement for the felony offense was implicit in the Court’s opinion, as can be verified by examination of the offenses and application of the Blockburger test.
“In order to convict [Jackson] of theft of identity under KRS 514.160(1)(d), the Commonwealth was required to prove beyond a reasonable doubt that [Jackson] knowingly used another person’s identifying information with the intent to represent [her]self as that other person in order to avoid detection.” Crouch, 323 S.W.3d at 673 (emphasis added). This requirement to establish that the false identifying information was that of another person is not contained in the elements required for the misdemeanor offense. KRS 523.110 requires only that identifying information provided to a peace officer be false—providing identifying
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information that was entirely fictitious, and belonged to no other individual, would satisfy the offense. However, KRS 514.160 requires the possession or use of another individual’s current or former identifying information. Id.
In sum, Jackson has provided no argument to establish that the trial court erred in refusing to instruct the jury on the misdemeanor offense of giving false identifying information to a peace officer.
CONCLUSION
For the foregoing reasons, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General Frankfort, Kentucky