¶1dissenting.
¶2Respectfully, I must dissent from Section III of the Court’s opinion. The majority states that a robbery was accomplished solely by “McKee and Kirkland entering] the store with a gun in order to steal money from the victim,” and, as such, holds that the trial court was correct in refusing a criminal attempt instruction with respect to McKee. Since a robbery was committed, says the majority, there is no evidence of attempt. I believe this logic is flawed, and the trial court should have allowed an instruction for McKee. As we stated in Taylor v. Commonwealth, Ky., 995 S.W.2d 355 (1999):
In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony. A defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions. (citations omitted).
¶4I believe the evidence of McKee’s involvement in the robbery was minimal, and therefore the jury could have reasonably believed that he was guilty merely of attempt. KRS 506.010 states that a person is guilty of criminal attempt “when he engages in conduct intended to aid another person to commit that crime, although the crime is not committed or attempted by the other person, provided that his conduct would establish complicity under KRS 502.020 if the crime were committed by the other person.” KRS 506.010(3). Here no money was taken, so no theft occurred. However, in Wade v. Commonwealth, Ky., 724 S.W.2d 207, 208 (1986), we found that KRS 515.020, the robbery statute, does not require a completed theft to support a conviction. Regardless, the jury should have been given the opportunity to convict McKee of the lesser crime of attempt if they found that his behavior merely aided Kirkland, but did not actually rise to the level of robbery.
¶5As a result, I would reverse McKee’s conviction and remand for a new trial.