WILLIAM M. ANDREWS V. COMMONWEALTH OF KENTUCKY
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RENDERED: September 25, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002718-MR
WILLIAM M. ANDREWS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISAAC, JUDGE
ACTION NO. 97-CR-0771
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and GUIDUGLI, Judges.
COMBS, JUDGE:
The appellant, William M. Andrews (Andrews),
appeals from the judgment of the Fayette Circuit Court convicting
and sentencing him for fourth-degree assault.
Finding no error,
we affirm.
On May 22, 1997, Andrews's home, located at 730 Florida
Street in Lexington, Kentucky, was apparently burglarized.
Officer Tracy McIntrye responded to the complaint and interviewed
Andrews at the scene of the alleged crime.
At that time, Andrews
indicated that he thought that Derek Hughes (a/k/a "Dirkie") may
have been the person who had broken into his home.
Andrews and
Hughes were friends and had talked together earlier in the
evening; they had had no previous altercations.
After Andrews
asked his neighbors concerning the possible whereabouts of
Hughes, Officer McIntrye instructed Andrews to return home.
A short time later, Andrews left his apartment and
found Hughes talking to some other friends down the street from
Andrews's apartment.
As Andrews proceeded towards Hughes,
Andrews grabbed something from a garbage bin and struck Hughes in
the head with it.
Although there is some conflicting testimony
as to whether the object used to strike Hughes was a board with a
nail (or something else), the blow caused Hughes to slump to the
ground and opened a cut along his forehead.
Hughes was taken to
Central Baptist Hospital, where he received stitches for his
injury.
At some point after Hughes had regained his full senses
but before being taken to the hospital by his wife, he discovered
$110 missing from the pocket of his sweatpants.
While at the
hospital, Hughes spoke with Officer Craft concerning the details
of his encounter with Andrews -- including his concern over the
missing money.
Based upon the events of May 22, 1997, Andrews was
indicted by the Fayette County Grand Jury for assault in the
second degree and persistent felony offender in the first degree
(PFOI).
The case proceeded to trial, and Andrews was found
guilty of assault in the fourth degree; the court had dismissed
the
PFOI charge upon motion of the Commonwealth.
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On October 20,
1997 the court entered final judgment, sentencing Andrews to five
months' imprisonment and assessing him a fine of $500.
This
appeal followed.
Andrews's first argues that it was error to admit
evidence of the uncharged crime of robbery. He contends that it
was not necessary to offer evidence of the robbery in order to
prove the crime of assault and that, therefore, any evidence of a
possible robbery should have not been admitted.
Andrews
maintains that evidence of a possible robbery was improper
character evidence and that its admission was a violation of due
process.
We disagree.
Rule 404 (b)(2) of the Kentucky Rules of Evidence
allows evidence of other crimes to be admissible if it is "so
inextricably intertwined with other evidence essential to the
case that separation of the two (2) could not be accomplished
without serious adverse effect on the offering party. "
Professor Lawson, The Kentucky Evidence Law Handbook, 3rd Ed.,
ยง2.25 explains this rule as follows:
KRE 404(b)(2) uses the language 'inextricably
intertwined with other evidence essential to
the case' to describe the circumstances under
which interwoven crimes may be received as
evidence. The case law from which this
provision is extracted suggests that the rule
is intended to be flexible enough to permit
the prosecution to present a complete,
unfragmented, unartificial picture of the
crime committed by the defendant, including
necessary context, setting, background, and
perspective.
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In interpreting the admissibility of this type of evidence, the
Kentucky Supreme Court in the case of Stanford v. Commonwealth,
Ky., 793 S.W.2d 112, 116 (1990) quoted from Smith v.
Commonwealth, Ky., 366 S.W.2d 902, 906 (1962) as follows:
'the rule (is) that all evidence which is
pertinent to the issue and tends to prove the
crime charged against the accused is
admissible, although it may also approve or
tend to prove the commission of other crimes
by him or to establish collateral facts.'
We agree that evidence of Andrews's possible robbery of
Hughes was so interwoven with the circumstances surrounding the
assault that its inclusion was necessary for the Commonwealth to
present the case fully.
Even if it could successfully be argued
that evidence of a possible robbery should have been excluded,
Andrews was nonetheless not prejudiced by the evidence in light
of the minimal mention and inclusion of the testimony alluding to
the possible robbery.
Thus, despite the fact that the evidence
of a possible robbery may have revealed collateral, uncharged
criminal activity, we conclude that the jury was entitled to be
apprised of the entirety of the circumstances surrounding the
assault; therefore, we find no reversible error in the trial
court's ruling as to this testimony.
Andrews's next argument on appeal is that the medical
records of Derek Hughes offered by the Commonwealth should not
have been admitted into evidence.
Andrews contends that the
records were not properly authenticated and were not relevant to
the assault charge.
The medical records offered by the
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Commonwealth were clearly hearsay and thus have been admitted
properly must have fallen under one of the recognized exceptions
to the rules excluding hearsay.
"It is now well settled that the
medical record of a patient in a hospital is admissible in
evidence under the regular business entries exception to the
hearsay rule."
Baylis v. Lourdes Hospital, Inc., Ky., 805 S.W.2d
122, 123 (1991).
Although there was no testimony as to the
authentication of the medical records, they fell within the
foundation exemptions set forth in KRE 803(6)(A).
exemptions reference to KRS 422.300 to 422.330
These
and provide an
alternative to normal authentication methods. "This statute
(K.R.S. 422.300) is merely a convenient device for authenticating
medical records."
Young v. J.B. Hunt Transportation Inc., Ky.,
781 S.W.2d 503, 508 (1989).
Because of the authenticity
exemption for medical records of a hospital, the records from
Central Baptist Hospital offered by Commonwealth were properly
admitted into evidence notwithstanding any possible concerns as
to relevance and probative value.
The record does not indicate that the medical records
were admitted for any purpose other than to show the injuries and
treatment administered to Derek Hughes while he was at the
hospital.
Clearly this information was relevant to the facts and
circumstances of the case.
Nonetheless, appellant claims that
the admission of these records into evidence was merely
cumulative and, therefore, that they should have not been
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allowed.
It is true that evidence may be excluded because its
"probative value is substantially outweighed by the danger of
undue prejudice ... or needless presentation of cumulative
evidence."
KRE 403.
However, "[t]he trial court has discretion
to control the presentation of evidence.
In the absence of any
abuse, the reviewing court will not reverse the decision of the
trial judge."
544 (1985).
Pendleton v. Commonwealth, Ky., 685 S.W.2d 549,
There was no clear abuse of discretion by the trial
court in admitting the records of the hospital pertaining to the
treatment of Derek Hughes.
Andrews's final contention is that the trial court
erred by failing to give an "extreme emotional disturbance"
instruction to the jury.
In McClellan v. Commonwealth, Ky., 715
S.W.2d 464, 468, 469 (1986) extreme emotional disturbance was
defined as:
a temporary state of mind so enraged,
inflamed, or disturbed as to overcome one's
judgment, and to cause one to act
uncontrollably from the impelling force of
the extreme emotional disturbance rather than
from evil or malicious purposes.
Two separate factors must be shown to warrant an instruction of
extreme emotional disturbance in an assault case:
(1) evidence
of extreme emotional disturbance and (2) reasonable justification
or excuse under the circumstances as the accused believes them to
be.
Creamer v. Commonwealth, Ky. App., 629 S.W.2d 324, 325
(1981).
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Andrews has failed to meet the threshold requirements
of this two-part test.
The evidence revealed that appellant
became angry upon discovering that his apartment had been broken
into and that some time after reporting the break-in to Officer
McIntrye, he decided to seek his own revenge upon the victim.
Although it is highly tenuous that such an occurrence could
constitute extreme emotional disturbance, the action taken by
Andrews could not be justified even under the circumstances as
Andrews may have believed them to exist. The state of being
"upset" or "uneasy" simply does not rise to the level of extreme
emotional disturbance by legal definition.
Thompson v.
Commonwealth, Ky., 862 S.W.2d 871, 877 (1993).
An instruction as to extreme emotional disturbance may
not generally be invoked merely to mitigate an alleged crime.
The evidence submitted must meet the threshold requirements
described above.
Andrews has failed to meet these requirements
and thus was properly denied an extreme emotional disturbance
instruction.
"The reasonableness of an excuse or justification
must ordinarily be submitted to the jury.
Where there is no
excuse or justification , there is nothing to submit."
Thomas v.
Commonwealth, Ky. App., 587 S.W.2d 264, 265 (1979).
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sally Wasielewski
Lexington, KY
A.B. Chandler III
Attorney General
Ian G. Sonego
Assistant Attorney General
Frankfort, KY
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