GREEN BAILEY MIDDLETON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002629-MR
GREEN BAILEY MIDDLETON
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 99-CR-00162
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MILLER, JUDGES.
MILLER, JUDGE:
Green Bailey Middleton brings this appeal from an
October 30, 2000, judgment of the Harlan Circuit Court.
We
affirm.
In October of 1999, the Harlan County Grand Jury
indicted appellant upon first degree wanton endangerment
(Kentucky Revised Statutes (KRS) 508.060); first degree assault
(KRS 508.010); first degree burglary (KRS 511.020); and for being
a persistent felony offender in the first degree (KRS
532.080(3)).
Generally, it was alleged that appellant forced his
way into the home of his former wife, one Marisha Curry, while
armed with a pistol and assaulted her therein.
The case came on
for trial September 13, 2000, before the court sitting without a
jury.
The court found appellant guilty of second degree assault,
first degree burglary, and of being a first degree persistent
felony offender.
On October 30, 2000, appellant was sentenced to
a total of fifteen years' imprisonment, thus precipitating this
appeal.
Appellant contends that there was insufficient evidence
to support his conviction for second degree assault.
Second
degree assault is codified in KRS 508.020:
(1)
A person is guilty of assault in
the second degree when:
(a)
He intentionally causes
serious physical injury
to another person; or
(b)
He intentionally causes
physical injury to
another person by means
of a deadly weapon or a
dangerous instrument; or
(c)
He wantonly causes
serious physical injury
to another person by
means of a deadly weapon
or a dangerous
instrument.
We are not concerned with subsection (a) of 508.020 as both
appellant and the Commonwealth agree that the evidence did not
sustain a determination that Marisha suffered serious physical
injury.
Our analysis will focus upon subsection (b).
Appellant maintains that the evidence is insufficient
to support the finding that Marisha suffered physical injury or
that a deadly or dangerous instrument was used to effectuate the
assault.
Marisha testified that appellant hit her with a gun in
-2-
his hand several times, and that she even fell to the floor twice
as a result of being struck.
She testified that he threatened to
kill her and was very angry.
Marisha also stated that as a
result of being struck by appellant, one of her teeth broke.
It
appears that Marisha was taken to the hospital for evaluation.
At trial, she also alleged to have suffered broken blood vessels
on her face.
We observe that a gun, as a matter of law, is a deadly
weapon.
KRS 500.080(4); Hicks v. Commonwealth, Ky., 550 S.W.2d
480 (1977).
Thus, we think that Marisha's testimony of appellant
striking her with a gun in his hand was sufficient to support a
finding that appellant used a deadly weapon to perpetrate the
assault.
We also believe that Marisha suffered physical injury
as a result of the assault.
KRS 500.080(13) defines physical
injury as “substantial physical pain or any impairment of
physical condition.”
Based upon Marisha's testimony that her
tooth was knocked out, and that appellant hit her so hard that
she fell to the floor twice, we are of the opinion that there was
sufficient evidence in the record to support a finding that
Marisha suffered physical injury as a result of the assault.
Key
v. Commonwealth, Ky. App., 840 S.W.2d 827 (1992), Meredith v.
Commonwealth, Ky. App., 628 S.W.2d 887 (1982).
Upon the whole,
we hold that there existed sufficient evidence upon which
appellant could have been found guilty beyond a reasonable doubt
of assault in the second degree.
Appellant also asserts that the circuit court committed
reversible error by allowing the testimony of one Patricia Curry.
-3-
On the morning of trial, the Commonwealth revealed to the court
that Patricia Curry would be testifying.
The Commonwealth
Attorney stated that he did not know about the witness until the
morning of trial.
Appellant objected to the witness, but such
objection was overruled by the court.
The court determined that
any prejudice would be alleviated by permitting defense counsel
to speak with Patricia Curry prior to her testimony.
Defense
counsel interviewed Patricia Curry before her testimony at trial.
Patricia Curry apparently owned the home where Marisha
lived at the time of the assault.
Marisha and her husband,
Robert Curry, both testified that appellant kicked in the door.
Marisha and Robert testified that it was not possible to open the
door because the deadbolt was stuck, thus supporting their
testimony that appellant's entry was forced.
Conversely,
appellant testified that his entry into the home was permissive.
During defense counsel's interview, Curry told defense counsel
that neither Robert nor Marisha ever complained to her that the
deadbolt on the door was stuck.
After the interview and during
her testimony, she, however, stated that Robert and Marisha had,
in fact, complained about the deadbolt being stuck.
Appellant specifically alleges that “[b]y calling Ms.
Pat Curry to testify after being revealed at the last minute, and
under circumstances in which she mislead (sic) defense counsel
during the court ordered interview, the prosecution was permitted
to tip the scales unfairly against the appellant.
Exclusion of
Ms. Curry's testimony should have been the appropriate remedy
here.”
We disagree.
Appellant informed the court of the
-4-
inconsistency in Patricia Curry's testimony, and we believe the
court could appropriately judge the credibility of Patricia
Curry.
Additionally, we do not believe that appellant
demonstrated any specific prejudice suffered as a result of the
delay in disclosing Patricia Curry as a witness.
Upon the whole,
we are of the opinion that the circuit court did not abuse its
discretion in this matter.
For the foregoing reasons, the judgment of the Harlan
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael C. Lemke
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
-5-
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