Criminal – erroneous instruction and lesser included offense: Howell v. Commonwealth (COA 8/28/2009)

Howell v. Commonwealth
2008-CA-000270 8/28/09 2009 WL 2633241

Opinion by Judge Moore; Judge Wine and Senior Judge Henry concurred.

The Court reversed a jury verdict and judgment of the circuit court convicting appellant for assault in the second degree. Reviewing under RCr 10.26 for palpable error, the Court held that under the circumstances of the case, because appellant was not indicted for second-degree assault under KRS 508.020 but only for first-degree robbery under KRS 515.020(1)(a), the trial court erred in giving an instruction for second-degree assault as a lesser included offense of first-degree robbery. The Court further held that this was not a harmless variance between the indictment and the instructions. The indictment relied upon injury to the victim, not the possession of a deadly weapon, as the element which elevated the crime to robbery in the first degree and the instructions required proof of the elements listed in KRS 515.020(1)(a), which were not the same elements necessary for a conviction under KRS 508.020(1)(b). Therefore, the error was not harmless as it resulted in an impermissible amendment of the indictment resulting in an erroneous conviction of an offense not charged in the indictment. But for the erroneous instruction a different result was probable resulting in a manifest injustice.

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