VERONA BRINEGAR V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ON APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
NO . 07-CR-00264-002
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Verona Brinegar appeals as a matter of right from a Judgment of the
Madison Circuit Court convicting her of wanton murder and first-degree
criminal abuse and sentencing her to a total of thirty-five years in prison . The
victim in this case was Brinegar's two-year-old daughter, Callie Robinson,
whose death was determined to have been caused primarily by suffocation and
secondarily by blunt trauma to the head and extremities . The Commonwealth
charged both Brinegar and her boyfriend, Ronald Crabtree, with the murder
and criminal abuse of Callie, and tried Brinegar and Crabtree jointly for those
offenses . The medical evidence presented during trial indicated that Callie
suffered from multiple burns all over her body, bruises on her scalp,
contusions and hemorrhaging on the bottoms of her feet, bruises on both ears,
and abrasions on her face that were consistent with someone smothering her.
On appeal, Brinegar's single allegation of error is that the trial court
erroneously precluded her from impeaching the testimony of Rhonda Crabtree,
Crabtree's ex-wife, who testified on Crabtree's behalf that the disagreements
she had with him which contributed to their 2002 divorce did not escalate to
violence. Brinegar now contends that she should have been able to impeach
Rhonda's statement with a Domestic Violence Order obtained by Rhonda
against Crabtree in 2000, which stemmed from a petition in which she alleged
that Crabtree had hit and kicked her. Finding that the trial court did not
abuse its discretion by determining this evidence to be irrelevant and
overwhelmingly prejudicial, we affirm .
Verona Brinegar lived in an apartment complex with her two-year-old
daughter, Callie, her four-year-old son, W., and her boyfriend, Ronald
Crabtree. One of Brinegar's neighbors in the apartment complex, Gayle
Johnson, testified at trial that on August 9, 2007, she heard loud knocking at
her door and after opening it, discovered Brinegar in the hallway holding Callie
in her arms. Johnson testified that Brinegar said her baby was not breathing.
Johnson suggested that they bring Callie inside, so Brinegar and her son, W.,
went into Johnson's apartment and placed Callie on the floor in the living
room. Once Callie was on the floor, Johnson stated that she could see plainly
that Callie was dirty, her skin was a blackish gray color, her toes were burnt,
her face and neck were bruised, and the inside of her ears were black .
Johnson then told Angie, a resident of her apartment, to call 9-1-1 . Johnson
testified that Brinegar had no real expression on her face and that she did not
seem upset during this whole process. Johnson stated that after the operator
on the phone told Brinegar how to perform CPR, Brinegar smashed "full force"
on Callie's body and she had to hit Brinegar to get her off Callie.
At approximately 2 :34 p.m., Officer Chris Butcher of the Richmond Police
Department arrived at the scene. He determined that Callie had no pulse and
was not breathing. Mark Campbell of the EMS then arrived and attempted to
resuscitate Callie . His attempts were unsuccessful, and Callie still had no
heartbeat when she arrived at the hospital . Callie was pronounced dead within
minutes of arriving at the hospital . Rebecca Daniels, the nurse who initially
examined Callie, testified at trial that Callie was small for a two-year-old ; that
she had multiple bruises, abrasions, and blisters on her body; and that Callie's
burns were consistent in shape with the end of a cigarette.
Dr. Cristin Rolf, the medical examiner who performed Callie's autopsy,
testified on behalf of the Commonwealth that based on her examination,
Callie's death was a homicide, the primary cause being suffocation and the
contributory cause being blunt trauma to her head and extremities . Dr. Rolf
that Callie had burns all over her body, abrasions and contusions on
her forehead and cheek, blotchy and irregular-looking lips, a bruise on her
forehead, and a dozen bruises on her scalp . She stated that Callie's hair was
abnormally fragile for a two-year-old, which she explained was a condition
caused by long-term stress and/or malnutrition . She also testified that Callie's
right ear had bruises and three abrasions on it, and that Callie's left ear looked
worse than her right. Dr. Rolf noted that Callie had injuries to the backs of her
hands and had contusions, abrasions, and hemorrhaging on the bottoms of
her feet, none of which would be caused by Callie running around without
wearing shoes. Additionally, Dr. Rolf testified that Callie had small, round
burns consistent with the shape of a cigarette on her legs, feet, toes, and
buttocks . As to her death, Dr. Rolf stated that Callie's wounds indicated that
someone held something over her face and smothered her, that a struggle did
not occur during the suffocation because there was no evidence of the blood
vessels in and around Callie's eyes breaking, and that Callie's injuries were too
widespread and severe to conclude that her death was caused by a seizure .
Regarding Callie's internal injuries, Dr. Rolf testified that she found no
congenital malformations and that Callie's bodily systems were consistent with
death . Dr . Rolf noted that Callie had some reddish clear liquid in her lungs,
but that this fluid is found in nearly every person who dies. Dr. Rolf testified
that because she found no acid from Callie's stomach in her lungs or any
abnormal amount of fluid in Callie's lungs, there was no evidence of Callie
vomiting or aspirating food or drink into her lungs prior to her death . On
cross-examination, Dr. Rolf acknowledged that prior to completing her autopsy
report, she was not aware of Brinegar's statement that Callie had vomited in
the days leading up to her death, nor was she aware that Brinegar kept red
juice on the counter of her apartment or that a red smear was found on the
wall in the room where Callie died.
Ronald Crabtree also called a medical expert to testify regarding the
cause of Callie's death . Dr. Tanya Weiss, a physician with Kentuckiana
Pulmonary Associates, testified that based out her examination of Callie's
medical and autopsy reports, she also believed that Callie had been abused
and that Callie had died from asphyxia or suffocation . However, Dr. Weiss
stated that she believed Callie's suffocation was accidental and not a homicide .
Dr. Weiss explained that Callie could have vomited the reddish liquid found in
her lungs and that this could have caused the asphyxia resulting in her death .
Dr. Weiss also theorized that because Callie appeared dehydrated and sick, she
could have been too weak and lethargic to remove the blanket that she had
been wrapped in from her face, which could have led to her accidental
Several of Brinegar's neighbors testified at trial regarding their
encounters with Brinegar. Andrea Hoskins testified that a couple of days
before Callie's death, Brinegar told her that W., her four-year-old son, had cut
Callie's hair, shaved her eyebrows, and burned her foot by putting it into an
electrical socket. l Mary Watson also testified that Brinegar told her that IV.
had cut Callie's hair . Stephen Davis testified that two nights before Callie's
death, Ronald had told him that he was afraid social services would take Callie
away because she had a burn on her foot and part of her eyebrows were gone .
In order to show that Brinegar was lying about how Callie's foot got burned, the
Commonwealth called Joe Willis, a licensed electrical inspector. Willis testified that
after examining the electrical outlet in Brinegar's apartment, there was no way
someone could simply put a foot up to or in the outlet and receive a burn . Willis
stated that this type of outlet, which produces 110 volts, could not burn a person
because to inflict an electrical burn, at least 220 volts is needed.
Crabtree's former girlfriend, Crystal Johnson, and her son, N .J ., were.
both called by Brinegar to testify at trial regarding the ways in which Crabtree
interacted with N .J . when he and Johnson were dating . Crystal Johnson
testified that she dated Crabtree on-and-off for approximately three years and
that Crabtree lived with her during part of this time . While Johnson and
Crabtree were living together, Johnson's son, N .J ., informed her that he had
been shocked on his hand . Johnson stated that after asking Crabtree how N.J .
had gotten shocked, he told her that N .J . had been "messing around" with the
wires behind the stereo. N.J., who was eight years old at the time of trial,
testified that he had spent time with Crabtree approximately four years prior
when Crabtree dated his mother. N.J . testified that out one occasion when his
mother was in the shower, Crabtree was pretending that he was a teddy bear,
put him under a pillow, and started smothering
face . N .J . stated that
Crabtree put all his weight on the pillow, he couldn't breathe, he kicked and
struggled to get free from under the pillow, and he was scared . N .J . also
testified that Crabtree would sometimes pull on his ears and that it would
hurt. On cross-examination, N.J. stated that Crabtree would take him
bowling, which was fun, and that even though Crabtree was nice, sometimes
when they played together it would hurt.
Although neither Brinegar nor Crabtree testified at trial, redacted
portions of their police interviews were admitted by the Commonwealth and
the jury. During Detective Brian Lafferty's interview of Brinegar,
Brinegar told him that Crabtree often would wrap Callie up in a blanket, but
that because two days prior to Callie's death she noticed that Callie's ears were
turning black, she told Crabtree that he could not wrap her anymore . Brinegar
agreed to videotape a demonstration of how Crabtree would wrap up Callie,
and this video was played for the jury . During the video, Brinegar stated that
although Callie would usually fall right to sleep after being wrapped. up, she
sometimes would squirm out of the blanket. Brinegar said that sometimes
Callie would pull at her own. ears and claw at herself.
Detective Eric Long, the lead investigator in this case, also interviewed
Brinegar, a videotape of which was played for the jury. During this interview,
Brinegar stated that the day before Callie's death, Callie had thrown up three
times and W. had hit Callie on the forehead with a coat rack, leaving a large
bruise on her head . Regarding the day of Callie's death, Brinegar first stated
that she had made a pallet on the floor for Callie that afternoon and laid her
down for a nap. About forty-five minutes to an hour later, Brinegar checked on
Callie and noticed she was not breathing. Although this was Brinegar's first
recitation of the events, later in the interview, she stated that Crabtree had
actually laid Callie down for her afternoon nap and that he had poked his head
in her room once to check on her.
After discovering that Callie was not breathing, Brinegar recounted that
she smacked Callie on the face and tried to give her CPR. After about thirty
seconds, she realized she did not know what she was doing and took Callie
next door to Gayle Johnson's apartment . Brinegar stated that before she left,
Crabtree had begged her to wait until he could leave before going to the
neighbor's apartment. After Brinegar took Callie next door, Crabtree fled the
scene. Surveillance photographs reveal that at 2 :40 p.m ., two minutes after
Johnson called 9-1-1, Crabtree was buying gasoline and cigarettes at the Circle
K near their apartment complex . David Lovings, Crabtree's boss, testified at
trial that Crabtree called him that afternoon and asked to get the money he
was owed for the week because he needed to get out of town . Subsequently,
Crabtree's father arrived at Lovings'house and demanded Crabtree's money.
Lovings stated that he gave Crabtree's father $300 . After Crabtree's father left,
Lovings'wife called the police .
Later that night, after Crabtree had contacted the local news station and
demanded to speak with Brinegar, Detective Sergeant Rodney Richardson
coordinated a phone conversation between Brinegar and Crabtree, a redacted
portion of which was played for the jury . During the conversation, Brinegar
told Crabtree that she had started to lie to the police for him by telling them
that he had not been at the apartment earlier in the day. Crabtree admitted on
the phone that he was the one who had gone into Callie's room that afternoon
to check on her, and after finding her not breathing, then took her to Brinegar.
Crabtree was eventually arrested and interviewed by Sgt. Richardson and
Detective Rodney Tudor. A redacted portion of this interview was also played
for the jury. In this interview, Crabtree explained that when he returned from
work on the afternoon of August 9, he rolled up Callie in a sleeping bag and
laid her down on her back for a nap. He said he checked on her every twenty
minutes or so, and that the second time he checked on her, he noticed that she
was laying face down and he heard her gasp for breath a couple of times . He
immediately took Callie out of the sleeping bag and yelled for Brinegar.
Crabtree admitted that he panicked after finding Callie and fled . When asked
about Callie's other injuries, Crabtree explained that W. would hit Callie on the
head with a wooden crayon and that W. burned her foot by putting it up to the
electrical socket . Crabtree also explained that the night before her death,
Callie had squeezed her body between the metal railing and springs of a
foldaway bed, which gave her bruises on her head and ears. Crabtree claimed
that her bruises got larger every day because she would pull at her ears and
throw herself off the toilet.
After the two defendants and the Commonwealth made their closing
statements, the jury deliberated for nine hours before returning a verdict. After
being instructed on intentional murder, wanton murder, complicity to -murder,
intentional criminal abuse, and complicity to criminal abuse, the jury found
Brinegar and Crabtree both guilty of wanton murder and intentional criminal
abuse.2 The jury recommended and the trial court imposed on Brinegar a
twenty-five year sentence for the murder and a ten year sentence for the
Like Brinegar, Crabtree appealed his murder and criminal abuse convictions to this
Court, however, he alleged six instances of trial court error. This Court agreed with
Crabtree regarding two of his allegations of error: we held that the trial court erred
in refusing to instruct the jury on second-degree manslaughter and in allowing
Brinegar to admit evidence of Crabtree's prior bad acts involving N.J., the son of
one of Crabtree's former girlfriends . Brinegar was not entitled to a new trial based
on the jury instruction error because at trial, Brinegar specifically informed the trial
court that she would not be asking for an instruction on second-degree
manslaughter or reckless homicide . Brinegar is also clearly not entitled to a new
trial based on the erroneous admission of prior bad act evidence because Brinegar
offered this evidence at trial as a way to implicate Crabtree in the abuse and
murder of Callie.
criminal abuse, which were to run consecutively for a total of thirty-five years
in prison . This appeal followed .
The Trial Court Did Not Err In Finding that Rhonda Crabtree's March 9,
2000, Domestic Violence Order Was Irrelevant, Overwhelmingly
Prejudicial, and Inadmissible .
As one of his rebuttal witnesses, Ronald Crabtree called his ex-wife,
Rhonda Crabtree, to the stand . Rhonda testified that she married Crabtree in
1997, they had two children together, and their marriage lasted for five years .
Rhonda stated that she and Crabtree divorced in 2002 because he was having
an affair with Crystal Johnson. While on the witness stand, Crabtree's counsel
asked Rhonda who was in charge of disciplining their children . Rhonda stated
that she was in charge of the discipline, that Crabtree never disciplined the
children or changed any diapers, and that Crabtree worked during the day and
rested when he was home. This was the extent of Rhonda's testimony on direct
examination ; significantly, she did not testify that Crabtree was a non-violent
person or that he had never been violent around her or her children. On
cross-examination, Brinegar's counsel first asked Rhonda if there were other
contributing reasons for the couple's 2002 divorce in addition to Crabtree's
affair with Crystal Johnson. Rhonda answered that she and Crabtree had
In her brief before this Court, Brinegar contends that "[o]n direct examination,
[Rhonda] testified that she had absolutely never seen Ronnie [Crabtree] be violent in
any way towards her or her children ." This recitation of the record is incorrect.
Rhonda was never asked during her direct examination whether Crabtree was
violent or whether she had ever seen him be violent and never testified that
Crabtree was a non-violent person. The only question even close to the topic of
violence was the question about who disciplined the children . Counsel is ethically
obligated to portray accurately the record on appeal . See SCR 3 .130-3 .3(a)(1) .
disagreements because he was often childish . Brinegar's counsel next asked if
those disagreements ever rose to violence . Rhonda, replied, "No."
Brinegar's counsel then attempted to introduce into evidence a copy of a
March 9, 2000 Domestic Violence Order (DVO) sought by Rhonda against
Crabtree . In the petition, which was attached to the DVO, Rhonda alleged that
in February 2000, when Crabtree came to their house to get some clothes, he
hit her, kicked her, yelled around their children, and caused her to be scared
for her own safety.4 Upon showing these documents to opposing counsel,
Crabtree objected to their admission and the parties approached the bench .
Crabtree's counsel argued that because he limited his questions on direct to
why the couple had divorced and never asked Rhonda whether Crabtree had
been violent, Brinegar's question regarding whether the couple's disagreements
rose to violence was improper as being outside of the scope of his direct
examinations Crabtree also argued that this was merely an attempt to
introduce improper and irrelevant Kentucky Rule of Evidence 404(b) evidence.
In response, Brinegar argued that because Rhonda had stated there was no
violence, the DVO was admissible to impeach her statement. After noting that
nothing in the DVO was relevant to abusing a little baby, the trial court ruled
In her brief, Brinegar contends that Rhonda also stated in her petition that "she
was fearful that Ronnie [Crabtree] would hurt the children ." After reviewing the
petition, this statement is also incorrect. Rhonda never stated in her petition that
she was afraid Ronnie would hurt the children, but rather, alleged that Crabtree
yelled at her in a rage, that she did not want her son around "that kind of
behavior," and that she was scared for her safety. Appellate counsel is admonished
to refrain from misrepresenting the record. See also footnote 2, supra.
Kentucky does not limit cross-examination to those matters addressed in direct
examination . See KRE 611(b) .
that "the overwhelmingly prejudicial effect. of this irrelevant. evidence outweighs
any probative value that it would have." The trial court then sustained
Crabtree's objection and permitted Brinegar to admit the DVO by avowal.(,
On appeal, Brinegar argues that because witness credibility is always at
issue, the trial court should not have precluded her from impeaching Rhonda's
statement with the DVO . Brinegar also contends that this evidence is relevant
to this case because it refuted Crabtree's defense that he was not a violent
person and would not have been violent towards Callie . Disagreeing that the
March 9, 2000 DVO actually impeached Rhonda's statement that the
Crabtrees' disagreements in 2002 did not rise to violence, and agreeing with
the trial court that the DVO was irrelevant and overly prejudicial, we affirm.
Brinegar contends that the trial court should have admitted the DVO in
order to impeach Rhonda's testimony on direct examination that Crabtree was
never violent . However, as explained above, this was not Rhoda's testimony .
Rhonda simply stated that Crabtree never disciplined their children or changed
their diapers . Then on cross-examination, Rhonda stated that in addition to
Crabtree's affair, there were disagreements which contributed to their divorce
After this ruling, Brinegar's counsel resumed her questioning by stating, "I believe
the last question was . . . you said there had been no violence, correct?" Rhonda
answered, "Yes ." The trial judge then interrupted and said, "Well, maybe I
misunderstood the question . I thought it was why she had sought a dissolution
against Mr. Crabtree . I believe her testimony was primarily because of the affair
and then also because he acted like a child or childish behavior was the reason that
she said she sought a divorce ." Crabtree's counsel then asked to approach the
bench again, and the trial judge called a recess . During this break, the parties
asserted again the same arguments that had been presented previously regarding
why the DVO should or should not be admitted . Consistent with its prior ruling,
the, trial court explained that why Crabtree and Rhonda divorced was not relevant
to this case and excluded the DVO.
in 2002, but those disagreements did not give rise to violence . Thus, Brinegar
was specifically trying to impeach Rhonda's testimony that the disagreements
she had with Crabtree in 2002 that contributed to their divorce did not rise to
violence . There are several deficiencies in Brinegar's, position regarding her
right to impeach Rhonda Crabtree.
First, this attempted impeachment plainly was not directed to Rhonda
Crabtree's bias and, because Brinegar does not even attempt to articulate her
bias argument, we properly reject it without further comment. Second,
whether the Crabtrees'marital arguments in 2002 were violent was clearly a
collateral fact and impeachment on a collateral fact is prohibited . Purcell v.
Commonwealth, 149 S .W .3d 382, 397-98 (Ky. 2004) . Third, the DVO evidence
did not actually impeach Rhonda Crabtree's statement. A DVO petition from
March 9, 2000 fails to impeach a statement that marital arguments occurring
in 2002, two years later, did not rise to violence.
Moreover, as this Court has explained, "the right to cross-examination is
not absolute and the trial court retains the discretion to set limitations on the
scope and subject" of such questioning. Davenport v. Commonwealth, 177
S .W .3d 763, 767-68 (Ky. 2005) . In particular, the trial court retains the
authority to exclude from cross-examination "interrogation that is repetitive or
only marginally relevant." Id., quoting Delaware v. Van Arsdall, 475 U .S .673,
679 (1986) . In this case, Rhonda's DVO petition simply revealed that in
February 2000, she had sworn that Crabtree hit her, kicked her, and yelled
around their children . Although under appropriate circumstances this
evidence may have been relevant to a charge alleging that Crabtree abused a
spouse or girlfriend, this DVO was wholly irrelevant to whether Crabtree
abused two-year old Callie Robinson and caused her death in 2007, more than
seven years later . In addition, the prejudicial effect of this seven-year-old DVO
far outweighed any probative value it would have had . Thus, the trial court
acted within its discretion in concluding that this irrelevant and
overwhelmingly prejudicial evidence should be excluded .
Finally, Crabtree's insistence at trial that allowing Rhonda Crabtree to
testify about a- prior domestic violence incident would violate KRE 404 is
correct. KRE 404(b) prohibits introduction of evidence of "other crimes,
wrongs, or acts . . . to prove the character of a person in order to show action.
in conformity herewith." However Brinegar may characterize the evidence, it
was indisputably evidence of a prior violent act by Ronald against his former
wife . This evidence did not bear in any way on the issues surrounding Callie
Robinson's death . In essence, Brinegar sought to introduce evidence of
Ronald's prior "wrongs or acts" in order to show that he was a violent person,
the very thing prohibited by KRE 404(b) . Brinegar makes no attempt to argue,
and indeed there is no credible basis for finding, that this evidence comes
within any of the exceptions to the general rule such as being offered as "proof
of motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident" or because it is "so inextricably intertwined
with other evidence essential to the (case ." KRS 404(b) (1) and (2) .
Brinegar contends that she is entitled to a. new trial because the trial
court erred by refusing to allow her to impeach Rhonda Crabtree's testimony
with evidence regarding a DVO Rhonda sought against Ronald Crabtree in
March 2000 . The trial court did not err . The impeachment was not for bias, it
related to a collateral fact and, in any event, the March 2000 DVO did not
impeach Rhonda's specific testimony that the marital disagreements she had
with Crabtree that led to their 2002 divorce were not violent. Moreover, the
trial court acted within its discretion in finding the DVO to be irrelevant to the
issue of who abused and killed Callie and to be overwhelmingly prejudicial .
For the foregoing reasons, the July 2, 2008 Judgment of the Madison Circuit
Court convicting Brinegar of wanton murder and first-degree criminal abuse
and sentencing her to a total of thirty-five years in prison is affirmed .
All sitting . All concur .
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Christian Kenneth Ray Miller
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Captial Center Drive, Suite 200
Frankfort, KY 40601