JERRY W. LONG v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
OCTOBER 26, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000535-MR
JERRY W. LONG
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 00-CR-00693 & 00-CR-01297
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment convicting
appellant of first-degree assault.
Appellant argues that there
was insufficient evidence of first-degree assault under the
instructions as submitted.
We disagree and affirm.
On April 21, 2000, the victim, Jacob Gallimore, his
brother, Richard Gallimore, and three friends were hanging out at
the Preakness Apartment Complex in Lexington, Kentucky.
At some
point, the five young men decided to walk to the residence of
Joey Lee.
They proceeded to walk across a field and through the
Sugar Mill Apartment Complex.
In so doing, three of the boys,
including the victim, scaled a fence surrounding the pool area at
the Sugar Mill Apartments.
As they were cutting through the pool
area, the apartment complex’s maintenance man, David Osborne, and
his guest, Jerry Long, spotted the boys from a second floor
balcony, and Osborne yelled at the boys to get off the property.
He and Long then ran after the boys to make sure they immediately
left the premises.
Osborne eventually caught up with Richard
Gallimore and informed him that he should not be on the premises.
When Osborne was talking with Richard Gallimore, Long ran past
them to confront the other boys who had already left the
property.
Osborne, Richard Gallimore, and Tommy Bullock then
followed Long and when they caught up with him, discovered him
assaulting Jacob Gallimore.
Richard and Tommy testified that
they witnessed Long kicking, punching, and stomping on Jacob
Gallimore.
Richard testified that at one point Jacob was lying
helplessly on the ground while Long was stomping his head against
the pavement.
Long next began attacking Richard Gallimore and
punched him in the face several times.
Osborne and Long fled the
scene only after Osborne’s brother told them the police were on
the way.
As a result of the assault, Richard was left with only
minor injuries to his face.
unconscious by the attack.
Jacob, however, was rendered
The evidence at trial established
that Jacob suffered several facial fractures around his right
eye, possible nerve damage to the right eye, swelling of the
brain, and numerous other cuts, scrapes, and bruises.
As a
result of the injuries, Jacob was hospitalized for three days and
was unable to complete the school semester.
-2-
There was also
evidence that Jacob continued to have trouble after the discharge
and had to return to the emergency room a few days thereafter.
Long was indicted for first-degree assault as to Jacob
Gallimore and fourth-degree assault as to Richard Gallimore, as
well as for being a persistent felony offender (PFO) in the
second degree.
Pursuant to a jury trial, Long was found guilty
of assault in the second degree as to Jacob and assault in the
fourth degree as to Richard.
Long then waived his right to be
sentenced by the jury and entered a guilty plea to PFO in the
second degree.
Long received a sentence of five years on the
second-degree assault conviction, which was enhanced to ten years
due to the PFO 2nd.
Long now appeals only the second-degree
assault conviction.
Long first argues that the jury’s verdict was not
unanimous since all three of the alternative statutory theories
for second-degree assault were presented to the jury in one
instruction.
Hence, appellant maintains that certain jurors may
have found appellant guilty under one theory while other jurors
may have found him guilty under the other theories.
Appellant
does not point to where in the record said issue was raised and
we do not see that the issue was brought before the trial court.
See CR 76.12(4)(c)(iv); RCr 10.12; Turner v. Commonwealth, Ky.,
460 S.W.2d 345 (1970).
In any event, it has been held that a
defendant is not deprived of a unanimous verdict if all the
theories of the case submitted to the jury in one instruction are
supported by the evidence.
Wells v. Commonwealth, Ky., 561
-3-
S.W.2d 85 (1978).
The second-degree assault instruction in the
present case stated as follows:
If you do not find the Defendant
guilty under Instruction No. 2, you will find
the Defendant guilty of Second-Degree Assault
under this instruction if, and only if, you
believe from the evidence beyond a reasonable
doubt all of the following:
A. That in this county on or about
the 21st day of April, 2000, he inflicted an
injury upon Jacob Gallimore by applying force
with his foot and shoe onto Gallimore’s head
against the pavement;
AND
B. (1) That in so doing:
(a) The defendant intentionally
caused serious physical injury to Jacob
Gallimore;
OR
(b) The Defendant intentionally
caused physical injury to Jacob Gallimore and
the Defendant’s foot and shoe in conjunction
with the pavement was a dangerous instrument
as defined under Instruction No. 1;
OR
(2) That in so doing, the
Defendant wantonly caused a serious physical
injury to Jacob Gallimore and the Defendant’s
foot and shoe in conjunction with the
pavement was a dangerous instrument as
defined under Instruction No. 1.
Given the three alternate theories for commission of
the offense as submitted to the jury, the Commonwealth had to
present evidence that Jacob’s injury was a “serious physical
injury”, that his foot together with the pavement constituted a
“dangerous instrument”; and that Long acted wantonly in stomping
Jacob’s head into the ground.
The appellant did raise the issue
-4-
that the Commonwealth did not present sufficient evidence of the
above in the context of a directed verdict motion.
Accordingly,
we will review the issue.
KRS 500.080(15) defines “serious physical injury” as
“physical injury which creates a substantial risk of death, or
which causes serious and prolonged disfigurement, prolonged
impairment of health, or prolonged loss or impairment of the
function of any bodily organ.”
The evidence regarding Jacob’s
injury was presented through the testimony of Jacob and his
mother and through medical records.1
This undisputed evidence
established that Jacob suffered facial fractures, nerve damage to
his eye, swelling of the brain, and numerous other cuts and
bruises.
It was further undisputed that Jacob was knocked
unconscious by the assault, and suffered from headaches and
vomited for days after the assault.
In our view, the fact that
the assault knocked Jacob unconscious and caused his brain to
swell is sufficient evidence that the head injury suffered by
Jacob created a substantial risk of death.
Accordingly, the
instruction regarding “serious physical injury” was not in error.
The next issue before us is whether Long’s foot together with the
pavement constituted a “dangerous instrument” within the meaning
of the statute when Long was stomping Jacob’s head into the
ground.
“Dangerous instrument” is defined in KRS 500.080(3) as:
1
To the extent appellant argues that it was error for the
trial court to allow the Commonwealth to reopen its case to admit
the medical records prior to appellant’s case being presented, we
adjudge that it was not an abuse of discretion since appellant
was not prejudiced thereby. Appellant had the opportunity to
refute those records and appellant himself used the medical
records to cross-examine certain witness testimony.
-5-
any instrument, including parts of the human
body when a serious physical injury is a
direct result of the use of that part of the
human body, article, or substance which,
under the circumstances in which it is used,
attempted to be used, or threatened to be
used, is readily capable of causing death or
serious physical injury.
Long argues that his foot could not be considered a
dangerous instrument because there was no evidence that Long had
any blood on his foot or shoe after the assault and because Jacob
had no injury to the side of his face which was allegedly stomped
into the ground.
We do not see the lack of blood on appellant’s
foot and shoe or the lack of injury to the side of Jacob’s face
as significant.
The serious physical injury caused by Long
stomping Jacob’s head into the ground was the head injury which
knocked him unconscious and caused his brain to swell and which
would not always produce blood.
In any event, Jacob testified
that his head was bleeding after the assault.
As to Long’s claim that there was insufficient evidence
that he ever stomped on Jacob’s head when he was on the ground,
we must disagree.
As stated earlier, both Richard Gallimore and
Tommy Bullock testified that they witnessed the act.
Jacob
himself testified that Long repeatedly stomped his head into the
pavement.
Even Osborne testified that, although he did not
witness the act, it appeared to him that Long was getting ready
to stomp on Jacob’s head.
In Commonwealth v. Potts, Ky., 884 S.W.2d 654, 656-657
(1994), it was held that the defendant’s steel-toe work shoes
were a dangerous instrument as a matter of law since they were
used to kick the victim in a manner that could be reasonably
-6-
calculated to produce great bodily injury or death.
Jones v. Commonwealth, Ky., 256 S.W.2d 520 (1953).
See also
In the
instant case, while there was no evidence that appellant was
wearing steel-toe shoes, the appellant’s feet in conjunction with
the pavement did cause a serious physical injury when they were
used to stomp the victim’s head into the pavement.
KRS
500.080(3) specifically provides that a body part can be a
dangerous instrument if it is capable of causing and does cause a
serious physical injury.
It cannot be denied that stomping a
person’s head into a hard surface with the full weight of one’s
body is capable of causing a serious physical injury.
Accordingly, there was sufficient evidence that Long’s feet
together with the pavement was a dangerous instrument.
The next issue before us is whether there was evidence
that Long acted wantonly in assaulting Jacob.
Long maintains
that from the evidence, it was clearly unreasonable to find that
his actions were anything other than intentional.
KRS 501.020(3)
states that:
A person acts wantonly with respect to a
result or to a circumstance when he is aware
of and consciously disregards a substantial
and unjustifiable risk that the result will
occur or that the circumstance exists. The
risk must be of such a nature and degree that
disregard thereof constitutes a gross
deviation from the standard of conduct that a
reasonable person would observe in the
situation.
KRS 501.020(1) defines “intentionally” as follows:
A person acts intentionally with respect to a
result or to conduct described by a statute
defining an offense when his conscious
objective is to cause that result or to
engage in that conduct.
-7-
Although Long clearly acted intentionally in hitting
and stomping on Jacob, the evidence is not clear as to whether
Long intended to cause serious physical injury to him.
We agree
with the trial court that under the facts of the case, a jury
could find that Long acted wantonly.
As the trial court noted,
it is possible that he simply lost his temper and could not stop
hitting or stomping on Jacob, disregarding the risk of causing
serious physical injury, while not intending to cause serious
physical injury.
The jury is to be instructed on every state of
the case supported by the evidence presented.
Duke, Ky., 750 S.W.2d 432 (1988).
Commonwealth v.
Accordingly, it was not error
for the court to instruct the jury on a mental state of
wantonness.
The remaining argument before us is that it was error
for the court to include the definition of “dangerous instrument”
in the instructions.
law.
Long contends that such was an issue of
In Commonwealth v. Potts, 884 S.W.2d at 656, the Court
stated, “[i]t is true that ordinarily the question of whether an
instrument or object is a ‘dangerous instrument’ is a question of
fact for the jury to determine, depending upon the manner and
circumstances in which it is used.”
The Court goes to say that
the only time it is a question of law is if it is undisputed from
the evidence that the object was a dangerous instrument.
In the
instant case, we believe the court correctly submitted the issue
for the jury’s determination, as it was not undisputed that the
appellant’s feet were dangerous instruments.
-8-
For the reasons stated above, the judgment of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew W. Boyd
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
