Iris Jennings v. Commonwealth of Kentucky

RENDERED: JUNE 16, 2016
TO BE PUBLISHED

$5ttprrinr Court of I.firttfurltv
2014-SC-000419-DG
2015-SC-000171-DG

COMMONWEALTH OF KENTUCKY APPELLANT/
CROSS APPELLEE

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001621-DG
KENTON CIRCUIT COURT NO. 11-CR-00678-002

IRIS JENNINGS APPELLEE/
CROSS APPELLANT

OPINION OF THE COURT BY JUSTICE VENTERS

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Appellee/Cross Appellant, Iris Jennings (Appellee), was with her

boyfriend, Alvin McDaniel, when he shot Boysie Washington.' For her conduct

immediately before the shooting, Appellee was convicted of one count of

criminal facilitation of first degree assault; she was sentenced to one year

imprisonment, probated for three years. She appealed the conviction to the

Court of Appeals.

1McDaniel was convicted of two counts of first degree assault and of being a
second-degree persistent felony offender for shooting Boysie Washington and Tarsha
Henderson. McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013).
 The Court of Appeals reversed Appellee's conviction on two separate

grounds-and remanded the case for a new trial. First, the Court of Appeals

concluded that the jury instructions were prejudicially flawed. Second, the

Court of Appeals concluded that the trial court had not adequately addressed

Appellee's alleged Miranda violation. The Commonwealth sought discretionary

review only of the instructional error issue, leaving intact the Court of Appeals'

reversal of the Miranda issue. We granted the Commonwealth's motion for

discretionary review. We reverse the Court of Appeals' conclusion that the jury

instructions were flawed. The trial court did not err by not including a jury

instruction based upon KRS 506.100(1).

In a cross motion for discretionary review, which was also granted,

Appellee challenged the Court of Appeals' conclusions that the trial court

properly overruled her motions for a directed verdict and that the trial court

had properly denied Appellee's motion to suppress evidence obtained as a

result of the seizure and search of Appellee's cell phone. We affirm the Court of

Appeals with respect to the issues raised by Appellee in in her cross motion for

discretionary review. The trial court did not err when it overruled her motions

for a directed verdict and when it denied her motion to suppress the evidence

obtained from her cell phone.

Because of the remand of the case by the Court of Appeals for reasons

not brought before this Court on discretionary review, and because our

disposition of the issues before us does not negate the purpose of the remand,

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we remand the case to the Kenton Circuit Court for further proceedings as

directed by the Court of Appeals and consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee's teenage daughter got into a physical fight with a schoolmate

whose parents are Boysie Washington and Tarsha Henderson. Although the

facts are disputed, Appellee apparently believed that Boysie, unhappy with the

outcome of the first fight between the two girls, instigated a second fight under

his oversight to keep others from interfering. The police responded to the scene

and broke up the fight.

Angered by what he perceived as Boysie's role in getting the girls to fight

for a second time, McDaniel, armed with a handgun, went in search of Boysie.

Appellee got into McDaniel's car and went with him. McDaniel did not know

Boysie and would not be able to recognize him by sight; but Appellee did. As

the pair drove through the neighborhood, they passed Boysie and Appellee

called out Boysie's name, thus alerting McDaniel to the location of his victim.

McDaniel then got out of the car and shot Boysie four times, hitting him it the

arm, ribs, thigh, and hip. McDaniel returned to the car and drove away with

Appellee.

Appellee was indicted for criminal facilitation in connection with the

assault. She was tried, convicted, and sentenced as set forth above. The Court

of Appeals reversed the conviction, in part because it found that the trial court

had improperly instructed the jury. We address that issue first.

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 II. ANALYSIS

A. Appellee was not entitled to a jury instruction-based upon KRS
506.100(1).
As an issue of first impression in this Court, the Commonwealth

contends that the Court of Appeals erred when it determined that the jury

instruction on criminal facilitation should have incorporated the language of

KRS 506.100(1), which provides that "[a] person is not guilty of criminal

facilitation when: (1) The crime facilitated is so defined that his conduct is

inevitably incident to its commission."

Citing Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013), Thornton v.

Commonwealth, 421 S.W.3d 372 (Ky. 2013), and Webster v. Commonwealth,

438 S.W.3d 321 (Ky. 2014), the Commonwealth first argues that any error in

the failure to instruct the jury on the KRS 506.100(1) exemption was waived as

invited error. During five discussions of jury instructions with the trial court

noted in the record, Appellee never requested that KRS 506.100(1) language be

included in a jury instruction; nor did she ever voice an objection to the trial

court's instructions, which were comparable but not identical to her own

proposed instructions. 2 Like the trial court's instructions, the proposed jury

2 The trial court instructed the jury that Appellee could be found guilty of
facilitation of first degree assault if it found:
A. That . . . [Appellee] provided Alvin McDaniel with the physical
identification of Boysie Washington;
B. That Alvin McDaniel intended to use such identification for the purpose
of committing First Degree Assault upon Boysie Washington;
C. That when [Appellee] provided the physical identification of Boysie
Washington to Alvin McDaniel, she knew Alvin McDaniel intended to commit a First
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 instructions tendered by Appellee omitted the exemption theory set forth in

KRS 506.100(1).

It is fundamental that the trial judge must instruct the jury on the whole

law of the case, RCr 9.54(1), but that duty is tempered by the parties'

obligation to inform the court of its instructional preferences. RCr 9.54(2);

Martin, 409 S.W.3d at 345. We are not persuaded Appellee's failure to

specifically request an instruction on the KRS 506.100(1) exemption qualifies

as either invited or induced error. Appellee failed to object to the trial court's

omission of the exemption theory, but she did not affirmatively urge or

encourage the omission of the instruction as was the case in Mullins v.

Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011). Nevertheless, we need not

determine whether Appellee is estopped by a waiver or invitation of the alleged

error because we conclude the omission of the KRS 506.100(1) exemption was

not error at all.

The Court of Appeals concluded that the failure of the trial court to

include an instruction on KRS 506.100(1) was palpable error. Although

Appellee's argument, as well as the rationale employed by the Court of Appeals,

Degree Assault upon Boysie Washington and that the physical identification would
provide him with a means to do so;
D. That Alvin McDaniel thereafter did commit a First Degree Assault upon
Boysie Washington;
AND
E. That after providing Alvin McDaniel with the physical identification of
Boysie Washington, [Appellee] did not make a substantial effort to prevent the First
Degree Assault of Boysie Washington.

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is somewhat obscure and self-contradictory, we are persuaded they have

misconceived the fundamental nature of the statute.

Appellee contends that an instruction based upon KRS 506.100(1) was

essential because the jury heard evidence from which it might reasonably

conclude that Appellee's participation in the shooting of Boysie was "inevitably

incident" to that crime because McDaniel could not have shot Boysie if Appellee

had not identified him. Whether the principal offender would have "inevitably"

committed the crime without the facilitator's participation is not material to the

application of KRS 506.100(1). The exemption provided in the statute relates

to the essential elements of the crime being facilitated as that crime is defined

by the legislature. It has nothing to do with the particular conduct of the

parties involved in a particular criminal event and whether the particular crime

would have "inevitably" occurred without the facilitator's help.

We have not heretofore had the occasion to address the purpose and

meaning of KRS 506.100(1). Substantially similar language is also used in two

other statutes. KRS 506.050(4) provides an analogous exemption for criminal

conspiracy. It states: "No person may be convicted of conspiracy to commit a

crime when . . . that crime is so defined that his conduct is inevitably incident to

its commission." (Emphasis added). KRS 502.040(1) provides the same

exemption for accomplice liability: "A person is not guilty [as an accomplice] for

an offense committed by another person when: (1) The offense is so defined that

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 his conduct is inevitably incident to its commission . . . ." (Emphasis added.).

See also KRS 509.050. 3

Like KRS 506.100(1), the exemptions found in KRS 506.050(4) and KRS

502.040(1) have also remained under the radar of judicial interpretation. The

.1974 Kentucky Crime Commission/ LRC Commentary accompanying KRS

502.040 ("Complicity") and KRS 506.040 ("Criminal Conspiracy") provides

useful insight which informs our understanding of the application of KRS

506.100(1).

The Commentary for KRS 502.040 ("Complicity") explains:

[KRS 502.040(1)] provides for two exemptions to the general
doctrine of imputed liability for conduct which aids in the
perpetration of crime. The first is for individuals whose protection
is the very purpose of a criminal prohibition. As a consequence of
this exemption, for example, the female party to a statutory rape
cannot be convicted as an accomplice. The second is for a person
who joins another in a two-party transaction that constitutes a
crime for which criminal sanctions are imposed only on the other
party. As a consequence of this exemption, the purchaser of an
alcoholic drink cannot be convicted as an accomplice under a
statute which provides a penalty only for the seller. In each of
these examples, the offense is so defined that the conduct of the
so-called accomplice is "inevitably incident to its commission.

The Commentary for KRS 506.040 ("Criminal Conspiracy") states:

3 "A person may not be convicted of unlawful imprisonment in the first degree,
unlawful imprisonment in the second degree, or kidnapping when his criminal
purpose is the commission of an offense defined outside this chapter and his
interference with the victim's liberty occurs immediately with and incidental to the
commission of that offense, unless the interference exceeds that which is ordinarily
incident to commission of the offense which is the objective of his criminal purpose. . .
." (Emphasis added).

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 For non-inchoate offenses which are defined in such a way as to
require concerted conduct . . . KRS 506.050(4) provides an
exemption from the conspiracy offense for conduct of this type. It
applies to two types of offenses, the first of which is a crime having
as its principal element an agreement between two people, such as
bribery. The person who gives the bribe cannot be held to have
conspired with the person who receives the bribe. The second type
of offense to which the exemption applies is one which is so defined
that an offender's co party is necessarily involved in commission of
the offense; An example is statutory rape. Because of KRS
506.050(4), a defendant cannot be held to have conspired with his
victim to commit this offense.

(Emphasis added).

Upon review and thoughtful consideration, it becomes apparent KRS

506.050(4) is simply a codification of the well-established common law doctrine

known as "Wharton's Rule" which has been incorporated into the modern penal

codes of many states, 4 including Kentucky, and which the drafters of our penal

code extended to the crime of criminal facilitation under KRS 506.080 and to

accomplice liability (complicity) under KRS 502.020.

The widely recognized rule of construction known as Wharton's
Rule states that when a substantive offense necessarily requires
the participation of two persons, and where no more than two

4 See Commonwealth v. Fisher, 627 A.2d 732, 733 (Pa. Super. 1993) ("[A]
person cannot be convicted as an accomplice to a crime if 'the offense is so
defined that his conduct is inevitably incident to its commission.' 18 Pa.C.S.A. §
306(f)(2)."); Robinson v. State, 815 S.W.2d 361, 363 (Tex. App., 1991) (quoting 2
W. LaFave & A. Scott, Substantive Criminal Law s 6.8(e) at 165-66 (1986))
("Another exception is where the crime is so defined that participation by another
is inevitably incident to its commission. It is justified on the ground that the
legislature, by specifying the kind of individual who was guilty when involved in
a transaction necessarily involving two or more parties, must have intended to
leave the participation by the others unpunished . . . . Thus, under this
exception one having intercourse with a prostitute is not liable as a party to the
crime of prostitution, a purchaser is not a party to the crime of illegal sale.).

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 persons are alleged to have been involved in the agreement to
commit the offense, the charge of conspiracy will not lie. 1 R.
Anderson, Wharton's Criminal Law 86 Procedure s 89 at p. 191
(1957).

State v. Langworthy, 594 P.2d 908, 910 (Wash. 1979).

As generally stated, [Wharton's] Rule prohibits prosecution of a
conspiracy to commit a particular crime when the commission of
that crime requires the participation of more than one person.

The crimes of dueling, bigamy, adultery, and incest are the classic
Wharton's Rule offenses. Commentators have added to that list
the crimes of pandering, gambling, the buying and selling of
contraband goods, and the giving and receiving of bribes.

People v. Laws, 613 N.E.2d 747, 748-50 (Ill. 1993) (citations omitted).

As a vestige of Wharton's Rule, KRS 506.100(1) simply provides

that one cannot be guilty of criminal facilitation for participation in a

crime that by its very definition requires the mutual participation of two

or more persons. For example, the crime of sports bribery under KRS

518.040(2) 5 is a Class D felony so defined as to require the participation

of a sports official and a person conferring (or offering to confer) a benefit

upon that sports official. KRS 506.100(1) precludes the state from

charging the sports official with criminal facilitation for providing the

briber with the means or opportunity to commit sports bribery, conduct

that would otherwise constitute the crime of criminal facilitation. For the

same reason, pursuant to KRS 506.050(4), the sports official could not

KRS 518.040 (1): "A person is guilty of sports bribery when he: . . . (b) Offers,
confers or agrees to confer any benefit upon a sports official with intent to influence
him to perform his duties improperly."

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be charged with conspiracy to commit sports bribery, and under KRS

502.040(1), he could not be charged with sports bribery as an accomplice

of the briber. To be clear, a culpable sports official might be guilty of

some other offense, but under our statutory adaptations of Wharton's

Rule, he cannot be charged with criminal facilitation of sports bribery,

conspiracy to commit sports bribery, or sports bribery by complicity with

the briber.

With that background, we turn our attention back to the case at hand.

Appellee was charged with facilitating the crime of first degree assault by

providing McDaniels with the means to commit the crime; she gave him the

knowledge he needed to identify his intended victim. The crime facilitated was

first degree assault, which as defined in KRS 508.010(1) does not require the

participation of two persons; it does not as defined require one person to

identify the victim and another to strike the blow. As a matter of law,

Appellee's participation was not "inevitably incident" to the crime of assault.

KRS 506.100(1) is inapplicable and stands as no barrier to Appellee's

prosecution.

Because the application of KRS 506.110(1) addresses itself exclusively to

the nature of the crime and is independent of any factual particulars of the

specific case, we cannot conceive that it would ever be an appropriate issue for

a jury's consideration such that it would be included in jury instructions. The

United States Supreme Court noted that "[t]he classic formulation of Wharton's

Rule requires that the conspiracy indictment be dismissed before trial.

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Wharton's description of the Rule indicates that, where it is applicable, an

indictment for conspiracy 'cannot be maintained."' Iannelli v. U. S., 420 U.S.

770, 774 (1975). Thus, the exemption is intended to preclude prosecution as a

matter of law; it is not a factual issue to be decided by the jury.

For the foregoing reasons, we conclude that the trial court correctly

omitted a jury instruction based upon KRS 506.100(1). We therefore reverse

that aspect of the Court of Appeals' opinion.

B. Appellee was not entitled to a directed verdict.

The trial court denied Appellee's motions for a directed verdict and the

Court of Appeals affirmed that decision. "On appellate review, the test of a

directed verdict is, if under the evidence as a whole, it would be clearly

unreasonable for a jury to find guilt, only then the defendant is entitled to a

directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187

(Ky. 1991).

KRS 506.080(1) provides that one is guilty of criminal facilitation to first

degree assault "when, acting with knowledge that another person is committing

or intends to commit [first degree assault], he engages in conduct which

knowingly provides such person with means or opportunity for the commission

of [first degree assault] and which in fact aids such person to commit [first

degree assault]."

Appellee argues that the Commonwealth's case was based entirely upon

circumstantial evidence that does not support a reasonable inference that she

knew McDaniel intended to shoot Boysie when she called out Boysie's name,

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and that the evidence does not support the reasonable inference that her

conduct provided McDaniel with a means to shoot Boysie. We disagree. Upon

review of the evidence we are satisfied that the evidence easily satisfied the

Benham standard and that the trial court properly denied her motion for a

directed verdict. We agree that Appellee presented a plausible case in support

of her innocence, but her evidence is not so compelling as to negate the

contrary inferences that may reasonably be drawn. We affirm that aspect of

the Court of Appeals' opinion.

C. The trial court properly denied Appellee's motion to suppress the
evidence found on her cell phone.

After the trial court denied Appellee's motion to suppress, the

Commonwealth introduced into evidence at trial four text messages which

police had discovered when they examined Appellee's cell phone. Appellee

contends that the initial seizure of her phone by police was unlawful and that

the subsequent search of her phone, which led to the discovery of the

incriminating evidence, exceeded the scope of the consent provided by Appellee,

and was therefore, illegal.

The Court of Appeals concluded that Appellee's argument with respect to

the initial seizure of her phone was unpreserved and it declined to address that

argument. We agree with the Commonwealth that Appellee's suppression

motion did not challenge the seizure of her phone, and so that issue was never

addressed by the trial court and remains unpreserved. Appellee's contention

that the police officers searched the contents of her phone beyond the limited

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.
consent she gave them was preserved, and so we proceed to consider that

argument.

Soon after the shooting, police identified Appellee as a "person of

interest" with whom they wished to speak. Appellee went to the police station

to discuss the incident. After being asked to leave her cell phone on a

detective's desk, she was ushered into to an interview room. According to the

detective, police interviewers routinely take cell phones away from the

interviewee to avoid distractions during the interview. Shortly after the start of

the interview, Appellee was advised of her Miranda rights.

During the interview, Appellee told the police that she and McDaniel

exchanged text messages, and that his phone number was stored in her cell

phone under a pet name she used for him. When the detective asked to

examine her phone to find McDaniel's phone number, Appellee consented to

the officer's search of her phone for that purpose. The trial court concluded

that the officer had not improperly examined the contents of the phone in

excess of Appellee's consent and so it denied the motion to suppress. The

Court of Appeals affirmed that ruling.

When reviewing a ruling on a suppression motion, we defer to the trial

court's findings of fact if they are not clearly erroneous. Findings of fact are

not clearly erroneous if they are supported by substantial evidence. Simpson v.

Commonwealth, 474 S.W.3d 544, 546-547 (Ky. 2015). Substantial evidence is

"evidence of substance and relevant consequence having the fitness to induce

conviction in the minds of reasonable men." Owens-Coming Fiberglas

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Corporation v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted).

We review the trial court's application of the law to the facts de novo. Id.

From the evidence presented at the suppression hearing, the trial court

found that the Appellee's consent to search the cell phone for McDaniel's phone

number was not limited to specific designated files, such as her "contacts"

directory or her text messages. The trial court found that Appellee authorized

the officer to look for McDaniel's number and that the detective did not extend

his search beyond the places one might reasonably expect to find a phone

number. After examining the phone, the officer used information gleaned from

it to obtain a search warrant authorizing a broader examination of the phone.

Upon review of the record, we find that the trial court's factual findings

were supported by substantial evidence. Consequently, the trial court's

findings are binding on our analysis whether the detective's search exceeded

the scope of Appellant's consent.

"Objective reasonableness" is the standard used to the measure the

scope of a person's consent to search under the Fourth Amendment. Florida v.

Jimeno, 500 U.S. 248, 251 (1991) (citations omitted). We assess the scope of

the search by asking "what would the typical reasonable person have

understood by the exchange between the [detective] and [Appellee]?" Id.

Appellee's consent did not expressly limit the search to the phone's

"contact" directory listings. It was objectively reasonable for the detective to

look for McDaniels' phone number in places other than Appellee's "contacts."

Contact information, including phone numbers, are routinely exchanged by

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text messages so it is objectively reasonable to look there for a phone number.

Furthermore, the detective testified that, although he looked at text messages

on Appellee's phone, he did not see the particular messages at issue in this

case until after securing the warrant. We agree with the trial court and the

Court of Appeals that the text messages introduced into evidence were not

subject to exclusion based upon the Appellee's premise that the search

exceeded the consent.

We might agree with Appellee that the detective exceeded his authority

when he looked at photos stored on the phone. He testified that he only

"clicked" on the photo that appeared in Jennings' contacts beside the entry

identified as "my man." Any overreach in that aspect of his investigation did

not produce the evidence that Appellee seeks to suppress. We therefore affirm

the Court of Appeals' conclusion that the trial court properly declined to

suppress the incriminating text messages.

III. CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals' opinion insofar

as it concluded that the jury instructions were erroneous; we otherwise affirm

the Court of Appeals. Accordingly, we remand the case to the trial court for

further proceedings consistent with this opinion and those portions of the

Court of Appeals' opinion affirmed by this Court or not brought before us on

discretionary review.

All sitting. All concur.

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COUNSEL FOR APPELLANT/CROSS APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

COUNSEL FOR APPELLEE/CROSS APPELLANT:

Kathleen Kallaher Schmidt
Assistant Public Advocate

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