BUSSELL (CHARLES R.) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: APRIL 30, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001202-MR
CHARLES R. BUSSELL
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 09-CR-00039
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CAPERTON, JUDGE, WHITE,1 SENIOR
JUDGE.
WHITE, SENIOR JUDGE: Charles R. Bussell appeals from a judgment and
sentence of the Bell Circuit Court entered on June 15, 2009. Bussell was convicted
by a jury of operating a motor vehicle while under the influence, fleeing or evading
1
Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
police in the second degree, assault in the third degree, and of being a persistent
felony offender (PFO) in the second degree. The charges against him stemmed
from a physical altercation he had with a police officer after he fled from a traffic
stop. We affirm.
The primary witness for the Commonwealth at Bussell’s trial was
Officer Joey Brigmon of the Middlesboro Police Department. At 11:00 p.m. on
December 16, 2008, Officer Brigmon was traveling south on US-25E in his
marked police cruiser. He observed Bussell’s vehicle traveling north without its
headlights on. Office Brigmon also observed that the front driver’s side tire was
flat. Officer Brigmon crossed the median of the roadway in order to stop Bussell’s
vehicle. Bussell turned right into a parking lot. Officer Brigmon switched on his
police lights, called in Bussell’s license plate number, and followed him into the
parking lot.
The two men got out of their cars at the same time. Bussell stumbled
and then immediately ran toward US-25E. Officer Brigmon shouted, “Police, stop
running!” but Bussell continued to flee. Officer Brigmon radioed his location and
advised the dispatcher that he was in pursuit of Bussell. Officer Brigmon
continued to shout after Bussell as he pursued him. Bussell ran down an
embankment and crossed US-25E, which is a heavily-traveled, four-lane highway.
Officer Brigmon pursued him across the highway and into the parking lot of a
restaurant where he finally caught him.
-2-
They had a short altercation and then fell to the ground where they
wrestled. Bussell struck Officer Brigmon in the chest with his forearm,
temporarily knocking out Officer Brigmon’s breath. At that point, Bussell was
able to escape. Officer Brigmon recovered and continued the chase, striking
Bussell on the back of the shoulder with his baton. Bussell made his way behind
the Middlesboro Mall where he crossed a fence into an area where several tractor
trailer beds were parked.
Several other police officers had arrived by this time. One of them,
Sergeant Spurlock, ordered Bussell to put his hands in the air and to get on his
knees. Bussell ignored the order, even after Spurlock drew his service weapon.
Officer Busic of the canine unit ordered Bussell to stop or he would release his
dog. He repeated the order, but Bussell continued to approach Spurlock. Busic
released the dog, who brought Bussell to the ground. The officers noticed that
Bussell smelled strongly of alcohol. Bussell continued to act in a belligerent
manner, screaming and cursing at the police. He refused to consent to a blood test.
Several empty beer cans and a half-empty bottle of malt liquor were later found in
his car.
At his trial, the Commonwealth presented testimony from Officer
Brigmon, Sergeant Spurlock, and Officer Busic. Bussell presented no evidence or
witnesses in his defense. Bussell received a sentence of one year for the thirddegree assault conviction, enhanced to ten years by the PFO in the second degree
conviction.
-3-
Bussell raises four arguments on appeal: (1) that the trial court erred
in denying his motion for a directed verdict on the assault charge; (2) that the jury
instructions allowed the jury to convict him of assault in the third degree under two
separate theories which led to the likelihood of a lack of unanimity in the verdict;
(3) that the jury instructions in the penalty phase permitted him to be convicted
under five separate theories which also led to the likelihood of lack of unanimity in
the verdict; and (4) the trial court erred when it sua sponte stopped Bussell’s
defense counsel from questioning Officer Brigmon about his injuries.
Assault in the third degree is defined in KRS 508.025, which states in
pertinent part as follows:
(1) A person is guilty of assault in the third degree when
the actor:
(a) Recklessly, with a deadly weapon or dangerous
instrument, or intentionally causes or attempts to
cause physical injury to:
1. A state, county, city, or federal peace
officer[.]
“Physical injury” is defined in KRS 500.080(13) as “substantial
physical pain or any impairment of physical condition[.]” “Impairment of physical
condition” has been defined simply to mean “injury.” Meredith v. Commonwealth,
628 S.W.2d 887, 888 (Ky. App. 1982).
Bussell argues that there was insufficient evidence that Officer
Brigmon had suffered an injury or that he had intended to cause Officer Brigmon a
physical injury, to sustain his conviction.
-4-
On a motion for directed verdict of acquittal, all fair and
reasonable inferences are drawn in the Commonwealth’s
favor. Commonwealth v. Benham, 816 S.W.2d 186, 187
(Ky. 1991). However, judgment as to the credibility of
witnesses and the weight of the evidence are left
exclusively to the jury. Id.; see also Commonwealth v.
Smith, 5 S.W.3d 126, 129 (Ky. 1999). On appellate
review, we determine whether, under the evidence
viewed as a whole, it was clearly unreasonable for the
jury to have found the defendant guilty. Commonwealth
v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
Fairrow v. Commonwealth, 175 S.W.3d 601, 609 (Ky. 2005).
Bussell contends that it was clearly unreasonable for the jury to return
a guilty verdict to the assault charge. Officer Brigmon testified that Bussell “didn’t
hurt” him and that Officer Brigmon did not have to be treated at a hospital, take off
any time from work, or obtain any prescription medications as result of the
altercation. Bussell contends that Officer Brigmon’s physical injury did not rise to
the level of that described in Covington v. Commonwealth, 849 S.W.2d 560, 564
(Ky. App. 1992), where the physical injury consisted of a bruise on the face and
scratch below the eye which were treated at a hospital emergency room, or in
Parson v. Commonwealth, 144 S.W.3d 775 (Ky. 2004), where the physical injury
caused substantial prolonged pain. By contrast, he argues, Officer Brigmon
suffered no injury or pain.
We disagree. In Key v. Commonwealth, 840 S.W.2d 827 (Ky. App.
1992), the victim, Springer, was struck from behind with a baseball bat by
Kenneth.
-5-
Kenneth’s characterization of the injuries suffered by
Springer, the crime victim, when he was struck in back
with the ball bat as “it simply knocked the wind out of
him and supposedly bruised his ribs” is disturbing. To
argue that such trauma would not both result in
“substantial physical pain”, and “impairment of physical
condition” stretches the human imagination.
Id. at 829 (emphasis in original).
The Key court further noted that “KRS 500.080(13) requires only
either of these results [“substantial physical pain” or “impairment of physical
condition”], not both.” Id. at n.1.
The facts here are analogous. Simply because Officer Brigmon had
no visible signs of injury (such as a bruise or scratch), his physical condition was
certainly impaired when the breath was knocked from his body. The evidence also
supported a finding that Bussell intended to injure Officer Brigmon. Bussell
interprets the evidence as showing that he was merely trying to escape, but the
evidence fully supports a finding that Bussell wanted to disable Officer Brigmon
physically in order to make an escape.
Bussell also argues that “Brigmon gave a lot more than he got, as the
saying goes,” and that if this were an assault in the fourth degree charge with a
civilian victim, no jury in the world would convict. Whatever the merits of such
speculation, it overlooks the fact that Bussell assaulted a police officer who was
legitimately attempting to detain him, and it also ignores the purpose of KRS
508.025, in which “the legislature was seeking to protect those individuals who
serve this Commonwealth in law enforcement capacities.” Wyatt v.
-6-
Commonwealth, 738 S.W.2d 832, 834 (Ky. App. 1987) (abrogated on other
grounds by McGuire v. Commonwealth, 885 S.W.2d 931 (Ky. 1994)).
Bussell next argues that the jury instructions were flawed because
they permitted him to be convicted of third-degree assault under two separate
theories, neither of which was supported by the evidence, which led to the
likelihood of a lack of unanimity in the verdict. This issue was not preserved for
appeal, but he requests review under the palpable error rule, Kentucky Rules of
Criminal Procedure (RCr) 10.26.
The instructions in question stated as follows:
Third-Degree Assault
You will find the Defendant, Charles R. Bussell, guilty
under Count III of the Indictment of the offense of ThirdDegree Assault under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all
of the following:
A. That in Bell County, Kentucky, on or about the 16th
day of December, 2008, and before the finding of the
Indictment herein, he intentionally caused or attempted to
cause physical injury to Officer Joey Brigmon by striking
him in the chest;
AND
B. That Officer Joey Brigmon was a Middlesboro City
Police Department Officer acting in the course of his
official duties and Defendant knew he was acting in the
course of such official duties.
-7-
Bussell argues that the jurors almost certainly would have been
divided as to whether there was an actual injury or whether he perhaps “intended”
to cause an injury.
[W]hen presented with alternate theories of guilt in an
instruction, the Commonwealth does not have to show
that each juror adhered to the same theory. Rather, the
Commonwealth has to show that it has met its burden of
proof under all of the alternate theories presented in the
instruction. Once that is shown, it becomes irrelevant
which theory each individual juror believed. This result
ensures that a defendant is convicted on proof beyond a
reasonable doubt by all twelve jurors.
Burnett v. Commonwealth, 31 S.W.3d 878, 883 (Ky. 2000).
As we have already held that the evidence in this case supported a
jury finding under either theory (actual injury or attempt), the instructions were not
improper.
Bussell also contends that the PFO instruction allowed him to be
convicted under five separate theories, thus leading to the likelihood that there was
a lack of unanimity in the verdict.
The instruction provided as follows:
You will find the Defendant, Charles R. Bussell, guilty of
being a Second-Degree Persistent Felony Offender under
this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
A. That prior to the 16th day of December, 2008, the
Defendant was convicted of Burglary in the Third Degree
by final Judgment of the Bell Circuit Court on the 4th day
of August, 2008; OR was convicted of Theft By
Unlawful Taking or Disposition (over $300) by final
-8-
Judgment of the Bell Circuit Court on the 1st day of
December, 2008;
AND
B. That he was eighteen (18) years of age or older when
he committed the offense which you believe he was so
convicted;
AND
C. That pursuant to said prior conviction, he was
sentenced to a term of imprisonment of one (1) year or
more;
AND
D. (1) That he completed the sentence imposed on him
pursuant to said prior conviction no more than five (5)
years before the 16th day of December, 2008;
OR
(2) That he was discharged from probation or parole
from the sentence imposed on him pursuant to said
conviction no more than five (5) years before the 16th day
of December, 2008;
OR
(3) That he was on probation, parole, conditional
discharge, conditional release, or furlough or appeal
bond, from said prior conviction at the time he
committed the offense of which you have found him
guilty in this case;
OR
(4) That at the time he committed the offense of which
you have found him guilty in this case he was in custody
for said conviction;
OR
-9-
(5) That at the time he committed the offense of which
you have found him guilty in this case, he had escaped
from custody while serving his sentence for said
conviction;
AND
E. That he is now twenty-one (21) years of age or older.
Bussell contends that the five subsections listed under subsection (D)
could have confused the jury and raised speculation in their minds as to whether he
might have escaped from custody or was out on an appeal bond. We agree that the
instructions presented a unanimity problem, since “[a] defendant is denied a
unanimous verdict when the jury is presented with alternate theories of guilt in the
instructions, one of which is totally unsupported by the evidence.” Burnett, 31
S.W.3d at 882.
Bussell argues that we must reverse on this issue, or trial courts and
prosecutors will simply continue to churn out boiler plate instructions that cover
every theory under the statute, confuse jurors, and create multiple opportunities for
non-unanimous verdicts. The error was, however, unpreserved, and we must
consider whether it resulted in the “manifest injustice” required to warrant relief
under the palpable error rule. See Schoenbachler v. Commonwealth, 95 S.W.3d
830, 836 (Ky. 2003). In our view, the instructions were not needlessly confusing.
Testimony from Bussell’s probation officer established that Bussell was on
probation when he committed the offenses in this case. Absent the disputed
instruction, Bussell would, in all probability, still have been found to be a PFO II.
-10-
There was, therefore, no palpable error requiring reversal of his conviction on that
charge.
Finally, Bussell argues that the trial court improperly prevented
defense counsel from asking Officer Brigmon whether he had suffered a physical
injury. Defense counsel asked Officer Brigmon “You’re not claiming you suffered
any physical injury, are you?” Officer Brigmon replied “He didn’t hurt me.” The
trial court intervened, stating:
I don’t know if it’s appropriate for him to say physical
injury, that is for the jury to determine and I’ll be giving
them a definition of what constitutes physical injury.
Don’t ask . . . you’re asking him to define a legal term,
right, the way the question is posed.
Defense counsel replied “Okay, let me ask it a different way,” and proceeded to
ask Officer Brigmon whether he had needed to go to the hospital or receive any
treatment after his encounter with Bussell, whether he had missed any work or
required any prescriptions. Officer Brigmon replied “No” to all of these questions.
Defense counsel also asked whether he had been able to strike Bussell with his fist
and baton afterwards, and Officer Brigmon explained that he was able to strike
Bussell with the baton after they started running again.
Bussell argues that the trial’s court’s intervention prevented defense
counsel from making excellent points which “could very well have saved the day”
for him. “The presentation of evidence as well as the scope and duration of crossexamination rests in the sound discretion of the trial judge. This broad rule applies
to both criminal and civil cases[.]” Commonwealth v. Maddox, 955 S.W.2d 718,
-11-
721 (Ky. 1997) (quoting Moore v. Commonwealth, 771 S.W.2d 34, 38 (Ky. 1988)).
“[A] witness generally cannot testify to conclusions of law.” Tamme v.
Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998). Although the term “physical
injury” is used in everyday speech, and the trial court may have shown an
overabundance of caution in requesting defense counsel to rephrase the question, it
was not an abuse of discretion to do so. Furthermore, through the subsequent
cross-examination, defense counsel was able to elicit detailed testimony from
Officer Brigmon about every aspect of his encounter with Bussell.
Bussell further argues that it was unfair that the trial court did not
intervene when the Commonwealth attorney on redirect examination asked Officer
Brigmon, “You did have impairment, didn’t you?” to which Officer Brigmon
replied, “Yes, it knocked the breath out of me.” This alleged error is unpreserved
for review, and Bussell has not asked for palpable error review. We therefore need
not address it in this opinion. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky.
2005). In any event, the trial court was not required to intervene, nor did its lack of
intervention rise to the level of manifest injustice necessary to invoke the palpable
error rule.
We affirm the judgment and sentence of the Bell Circuit Court.
CAPERTON, JUDGE, CONCURS.
COMBS, CHIEF JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
-12-
COMBS, CHIEF JUDGE, DISSENTING: I respectfully dissent from
the majority opinion that affirmed Bussell’s conviction of third-degree assault. It
is apparent that both of the requisite statutory elements were missing since no
injury or impairment resulted to Officer Brigmon as reinforced by his own
testimony and as demonstrated by his ability to continue his physical efforts to
subdue Bussell. Therefore, the trial court should have granted a directed verdict
dismissing this charge.
I also dissent with respect to the PFO II instructions, which, as Bussell
correctly argues, presented five separate theories for possible conviction. The
instruction was confusing and misleading, and it was calculated to subvert the
possibility of a unanimous verdict. While Bussell very likely would have been
convicted with a proper instruction, he was -- as a matter of due process -- entitled
to a proper instruction.
Finally, the repeated and disruptive interventions by the trial court
were inappropriate. The commentary by the trial court impeded the testimony of
witnesses and distorted any legitimate conclusion that a jury may have drawn from
that testimony.
These cumulative errors undermined Bussell’s right to a fair trial in a
case that should have been a ready conviction for the crimes of which he was
clearly culpable – DUI, evading arrest, and PFO II. Instead, these unnecessary
errors combined to dictate a reversal as to the third-degree assault charge and the
charge of PFO II.
-13-
Accordingly, I believe that we are compelled to reverse the charges of
third-degree assault and PFO II as a result of these errors.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
-14-
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.