CRIMIES, DEADLY WEAPON: MITCHELL V. COM. (COA 8/17/2007)

MITCHELL V. COM.
CRIMINAL: CRIMES (DEADLY WEAPON, ROBBERY)
2006-CA-000362
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; COMBS, MOORE CONCUR
COUNTY: CHRISTIAN
DATE RENDERED: 8/17/2007

Mitchell was not entitled to a directed verdict of acquittal for Robbery in the first degree. The evidence at trial showed Mitchell entered a branch of U.S. Bank and handed the teller a note that read, “I have a gun! Put the money in the bag!! Dont [sic] be stupid.” The handwritten note both referred to a deadly weapon and demanded money. This evidence alone was enough to overcome the directed verdict motion.

Robbery in the first degree, a Class B felony as defined in Kentucky Revised Statute (KRS) 515.020, requires intent to commit a theft, commission of a theft, and either the use or threat of immediate use of physical force on a non-participant in the crime, plus the person committing the theft must have either caused physical injury to a non-participant in the crime; been armed with a deadly weapon; or used or threatened the immediate use of a dangerous instrument upon a nonparticipant in the crime. In contrast, robbery in the second degree, a Class C felony as defined in KRS 515.030, requires only proof of a theft and either the use or threat of immediate use of physical force upon another person to commit the theft. Kentucky courts have consistently held reference to a deadly weapon, coupled with a contemporaneous demand for money, is sufficient to defeat a directed verdict motion on a charge of robbery in the first degree. Shegog v. Commonwealth, 142 S.W.3d 101, 109-110 (Ky. 2004); Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999); Swain v. Commonwealth, 887 S.W.2d 346 (Ky. 1994).

Digested by Scott C. Byrd – www.olginandbyrd.com

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