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CORRECTED : OCTOBER 6, 2008 RENDERED : MAY 22, 2008 TO BE PUBLISHED

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2006-SC-000682-MR

WILLIAM RYAN DIXON ON APPEAL FROM GREENUP CIRCUIT COURT HONORABLE LEWIS D. NICHOLLS, JUDGE NO. 04-CR-00150

APPELLANT

V.

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE MINTON AFFIRMING I . INTRODUCTION . A circuit court jury convicted William Dixon of first-degree assault, firstdegree rape, and first-degree robbery . He contends in this appeal that we must reverse his convictions because the trial court erred by (1) failing to instruct the jury on facilitation to commit first-degree robbery and facilitation to commit firstdegree rape and (2) failing to dismiss the first-degree assault charge as violative of the prohibition against double jeopardy when the same serious physical injury supports both the first-degree assault charge and the first-degree rape charge . We reject both of Dixon's arguments and affirm the convictions . In doing so, we overrule our prior case law and hold that the prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first-

degree rape (involving a serious physical injury to the victim), even if the same serious physical injury to the victim is used to support each conviction . II. FACTUAL AND PROCEDURAL HISTORY . Jane Doe' was working alone at Superstar Video when Wayne Murphy entered the store . Murphy wandered into a back room of the store, and Doe told him he was not allowed there. Murphy eventually left the store, and Dixon entered shortly afterward . After Dixon selected a video to rent, Doe told him that the store was running a promotion that would entitle him to get another video for free. Dixon said he wanted to get his friend to help select the extra movie. As Dixon went out the door, Doe told him to call her when he had made his selection because she was working elsewhere about the store. Doe was down on her hands and knees cleaning a shelf when Murphy struck her in the back of the head with a hammer. Murphy then grabbed Doe's foot and started dragging her toward the back of the store . Murphy called for Dixon to help him. Doe testified that Dixon helped Murphy drag her into the back room . Murphy then sent Dixon to remove the money from the cash register. After Dixon left the back room, Murphy demanded that Doe open the safe . When Doe told Murphy that there was no money in the safe, Murphy hit and kicked her. Dixon returned to the back room; and, according to Doe, he and Murphy removed Doe's clothing. Dixon held Doe in a chair while Murphy raped her. Murphy then knocked Doe to the floor and stood over her, brandishing a
Although the name of the victim is utilized freely in the parties' briefs, in order to protect her privacy, perhaps belatedly, we will refer to the victim only as "Jane Doe."

hammer. Dixon told Murphy to "hurry up and get it over with." Murphy then told Doe to "kiss her ass goodbye" and struck her on the head with the hammer. The crime was eventually discovered when a customer entered the store and saw Doe emerge from the back room naked and bloodied . Doe was taken to a local emergency room with two head wounds : a complex depressed skull fracture and a gaping laceration on the back of her head. The investigation quickly focused on Dixon because the store's computer recorded him as the last person to rent a video . The grand jury ultimately indicted Dixon on one count of first-degree assault, one count of first-degree robbery, and one count of first-degree rape . The indictment specifically alleged that Dixon had committed the assault by "intentionally causing serious physical injury to another person by means of a deadly weapon or dangerous instrument" and that he had committed the Class A felony offense of rape in the first degree by "engaging in sexual intercourse with another person by forcible compulsion and wherein the other person received a serious physical injury." The jury convicted Dixon of first-degree assault of Doe by intending to cause serious physical injury to her by using a dangerous instrument, of firstdegree robbery, and of first-degree rape under an instruction that required the jury to find beyond a reasonable doubt that Doe "received a serious physical injury as a consequence" of Dixon's actions. In accordance with the jury's recommendation, the trial court sentenced Dixon to twelve years' imprisonment for the assault, fifteen years' imprisonment for the robbery, and twenty years' imprisonment for the rape, all of which the trial

court ordered to be served consecutively, for a cumulative total of forty-seven years' imprisonment . Dixon then filed this matter-of-right appeal.2 III. ANALYSIS . Dixon raises two issues . First, he contends that the trial court erred when it refused to instruct the jury on facilitation to both robbery and rape . Second, he contends that his convictions for rape and assault violate the prohibition against double jeopardy because the same serious physical injury underlies each conviction . We reject both of Dixon's arguments . A. Evidence Did Not Support Additional Criminal Facilitation Instructions .

The trial court instructed the jury on criminal facilitation to first-degree assault but denied Dixon's request to instruct on criminal facilitation to rape and robbery . Instead, the trial court instructed the jury that they could find Dixon guilty of first-degree rape or first-degree robbery under a complicity theory.3 Dixon contends that the trial court's refusal to give the other facilitation instructions was error because the evidence presented could have led the jury to believe that Dixon merely provided an opportunity for Murphy to rape Doe and rob the video store without taking an active role in those offenses . We disagree . The statutory framework for the offense of criminal facilitation appears in KRS 506 .080. Subsection (1) of that statute provides that "[a] person is guilty of See Ky. Const .

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