ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part.
First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim. But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim. While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.
Contributed by Susan Balliet
