Tharp v. Commonwealth

¶1concurring.

¶2The majority opinion neglects to mention that Tharp made no objection at trial to the form of any of the trial court’s complicity to homicide instructions. In fact, the only objection made by Tharp in the trial court to any of the jury instructions was a “general objection” that the trial court should not instruct the jury regarding any offense because the evidence did not justify submission of this indietment to the jury. The appellant, therefore, did not properly preserve for review by this Court any alleged errors with respect to the trial court’s complicity to murder instructions.1 Because I do not believe the flaws in the trial court’s complicity to murder instruction warrant relief as palpable error under RCr 10.26, I concur in the result reached by the majority. I write separately, however, because, unlike the majority, I believe the trial court’s separate complicity definition found in Instruction No. 2 was not only unnecessary, but also erroneous.

¶3I agree with the majority opinion’s statement that “inclusion of any definition of complicity in the instructions was sur-plusage, since the substantive instructions embodied the essentials of the definition.” In my opinion, however, this Court should caution the trial courts of the Commonwealth of the risks of abstractly defining aii offense separately within the jury instructions.2 Without question, trial courts may simplify their instructions by separately defining certain terms (such as the culpable mental states) which appear throughout the instructions relating to the offenses themselves.3 Trial courts need *370not, however, separately define a offense in the abstract when the elements of the offense are set out elsewhere in the instructions. If the abstract definition of the offense is identical to the instruction regarding the offense, the definition serves no purpose. If the abstract definition differs from the instruction, as is the case here, the definition only risks jury confusion and invites error.4

¶4I cannot agree with the majority opinion’s defense of the language of the separate complicity definition, however, because that definition improperly commingles KRS 502.020(2)(c) and KRS 502.020(l)(c):

(c) “Complicity” — Means that a person is guilty of an offense committed by another person when, having a legal duty to prevent the conduct causing the result fails to make a proper effort to do so.

¶5I find this definition erroneous in that it incorrectly implies that KRS 502.020(2) liability derives from the liability of the principal offender. Simply put, a defendant found guilty of complicity to a crime pursuant to KRS 502.020(2)(c) is not “guilty of an offense committed by another person.” Although the factual background to complicity liability under KRS 502.020(2) will frequently involve the commission of a crime by another party, KRS 502.020(2) liability stems exclusively from the defendant’s own mental state and own actions or omissions with respect to the result of the other party’s conduct.5 Under KRS 502.020(2), a defendant can be liable for complicity in a crime even if the other party who causes the result upon which the defendant’s liability is premised acts with a mental state which constitutes a different offense entirely.6 Accordingly, *371KRS 502.020(2) liability for complicity cannot fairly be described as being “guilty of an offense committed by another person.”

¶6Perhaps the confusion in the majority opinion stems from a misunderstanding of the term “offense.” KRS 500.080(11) defines “offense” as a particular legislative sanction attached to particular conduct:

“Offense” means conduct for which a sentence to a term of imprisonment or a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state or by any law, order, rule, or regulation of any governmental instrumentality authorized by law to adopt the same.7

¶7Given this definition, I believe that KRS 502.020 creates one form of complicity under which a culpable party is “guilty of an offense committed by another,” but this is contained at KRS 502.020(1), not KRS 502.020(2):

502.020 Liability for conduct of another; complicity

(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:

(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or

(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or

(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:

(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or

(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or

(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.8

¶8Each time the words “the offense” are used in KRS 502.020(1), they refer to the same antecedent: “an offense committed *372by another person.” By contrast, the words “committed by another person” do not appear at all in KRS 502.020(2), KRS 502.020(2)(a)(b) & (c) refer to “the result” rather than to an offense, and the only “offense” referred to in KRS 502.020(2) is the offense charged.

¶9I find the majority opinion’s attempts to justify the language in the trial court’s complicity definition by selective quotations unpersuasive. Although the majority asserts that the title to KRS 502.020 supports the conclusion that KRS 502.020(2) liability makes a defendant “guilty of an offense committed by another person,” the word “conduct,” not “offense” appears in the statute’s title. The majority also finds evidence for its claim in the “that offense” language contained in KRS 502.020(2), but context and the Official Commentary to this section illustrate that this language refers to the offense with which the defendant is charged rather than the particular offense committed by another person. Finally, the majority turns to the Official Commentary to KRS 502.020 for support, but while the Commentary which relates to KRS 502.020(1) is peppered with language including “a crime committed by another,” “criminal act of another,” and “an offense committed by one conspirator,”9 no such language appears in the portion of the Commentary addressing KRS 502.020(2), and, in fact, the Commentary discusses KRS 502.020(2) liability in terms of the “offense charged”:

Unlike subsection (1), this provision does not require for liability that a defendant intend to promote or facilitate the commission of an offense. It is required only that a defendant act with the kind of culpability sufficient for commission of the offense charged.10

¶10The trial court’s separate complicity definition was therefore erroneous in that it implied that the substantive complicity instructions predicated the defendant’s guilt upon “an offense committed by another person.” The majority opinion’s defense of this language necessitates this separate opinion.

¶11The majority also asserts that Tharp raised “neither at trial nor in the briefs” any issue regarding whether the trial court’s complicity instructions were erroneous because they did not require the jury to make a factual finding that Tharp “was the parent and custodian of Elaina Curtis.” This statement is factually incorrect. Although Tharp did not preserve by contemporaneous objection in the trial court any alleged errors with respect to the form of the complicity to homicide instructions, Tharp devotes almost two pages of her briefs to this exact issue. In fact, the argument itself is written in bold and, in support of her argument, Tharp cites, again in bold, the learned treatise written by the author of today’s majority opinion:

Instruction Did Not Require Finding That Appellant Had A Legal Duty To Prevent the Crime

[[Image here]]

The complicity to murder instruction under which Myrna Tharp was convicted was deficient because the jury was not required to find beyond a reasonable doubt that Myrna Tharp had “a legal duty to prevent the conduct causing the result” in question. KRS 502.020(2)(c). Assuming arguendo that the controlling law at the time of the victim’s death created an affirmative legal duty for a parent to prevent physical injury by a *373third party to that parent’s child, the jury still had to find beyond a reasonable doubt that Myrna Tharp was the parent of the child in question so that the legal duty to prevent the conduct in question actually applied to her. KRS 500.070(1); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The judge may not direct, as a matter of law, that the legal duty in question applies to the accused; that element must be found by the jury beyond a reasonable doubt. There can be little doubt that “[hjaving a legal duty to prevent the result” is an element of the offense of complicity to murder. KRS 502.020(2)(c).

Instructions that allow a jury to convict without finding every element of the offense violate Winship’s requirement that “every fact necessary to constitute the crime” must be proven beyond a reasonable doubt. Due process “re-quirefs] criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he his charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). An instruction that relives the state of the burden of proving the complicity liability element of the offense beyond a reasonable doubt contradicts the presumption of innocence and invades the function of the jury, thereby violating due process.

The “definitions” instruction (Instruction No. 2) ... did nothing to ameliorate the failure of the instruction to require a finding beyond a reasonable doubt that Myrna Tharp had “a legal duty to prevent the conduct [of Kenneth Tharp] causing the result” in question. KRS 502.020(2)(c).

Indeed, one model or form instruction based on the Lane decision specifically requires the jury to find the defendant guilty under this instruction only if the jury finds from the evidence beyond a reasonable doubt, inter alia, “[t]hat the Defendant was [the mother] of _ (victim).” 1 Cooper, Kentucky Instructions to Juries (Criminal) § 10.08A .... This model instruction recognizes that the jury must find that the legal duty in question applied to the defendant due to the defendant’s status as a parent or legal guardian.

¶12Despite this oversight, I do not fault the majority for addressing the unpreserved issues, as I believe the proper interpretation of KRS 502.020(2) should be clarified for the bench and bar.

¶13To summarize, I do not believe that complicity under KRS 502.020(2) renders a defendant “guilty of an offense committed by another person,” and I believe the trial court’s separate definition of “complicity” was both unnecessary and erroneous. I agree with the result reached by the majority, however, because I do not believe the trial court’s complicity to homicide instructions, including the erroneous separate complicity definition, prejudiced Tharp’s substantial rights.

¶14JOHNSTONE, J., joins this concurring opinion.