TONYA BROCK v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 6, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000316-MR
TONYA BROCK
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 99-CR-00119
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Tonya Brock has appealed from a judgment and
sentence pursuant to a jury verdict entered by the Bell Circuit
Court on February 8, 2001, that convicted her of criminal abuse
in the second degree1 of her 22-month-old daughter and sentenced
her to prison for one year.
Having concluded that the trial
court erred by denying Tonya’s motion for a directed verdict of
acquittal on the charge that she permitted another person to
abuse her daughter, we reverse and remand for a new trial.
1
Kentucky Revised Statutes (KRS) 508.110.
In January 1998 Tonya2 and her previous boyfriend,
Robert Mason, had separated after having lived together with
their daughter, TRM.3
A few weeks later in February 1998, Arlin
Covey Brock, who Tonya had just recently met at her neighbor’s
house and who she had started dating, moved into Tonya’s mobile
home in Pineville, Bell County, Kentucky.4
On February 20, 1998, TRM was very sick when she was
returned to Tonya by her paternal grandmother and her paternal
grandmother’s boyfriend following an overnight visit.
vomiting, acting tired, and was generally “fussy.”
TRM was
Tonya took
her daughter to the emergency room at Middlesboro Hospital for
treatment.
The emergency room staff prescribed TRM an antibiotic
to be taken orally.
Two days later, on February 22, Tonya again
took TRM to the emergency room at Middlesboro Hospital after her
condition remained essentially unchanged.
TRM was released from
the hospital on the same day.
Tonya testified that on February 23, 1998, she was “so
stressed out” that she asked Covey to take TRM with him when he
went to a store.
The trip to the store took between 15 and 45
minutes, and Covey immediately returned when TRM began to
2
Tonya was known as Tonya Atkins before she married Arlin
Covey Brock on January 1, 1999.
3
In the interest of protecting the privacy of the abused
child, TRM will be referred to by her initials. TRM was born on
April 3, 1996.
4
The household consisted of Tonya, Covey, TRM and Braxton,
who was Tonya’s four-year-old son from a previous relationship.
Tonya and Covey married on January 1, 1999.
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experience seizures.
Tonya and Covey immediately took TRM to the
Pineville Community Hospital, which was only a few minutes away.
The staff at Pineville Community Hospital observed that
TRM was pale, very moist, unresponsive, and experiencing
difficulty breathing.
Approximately two hours after TRM arrived
at Pineville Community Hospital, she was transferred to
Middlesboro Hospital.
Sandra Duncan, a registered nurse at Middlesboro
Hospital who treated TRM, testified that she noticed bruises on
the child’s cheek.
Duncan questioned Tonya about the bruises,
and Tonya claimed that the bruises were the result of TRM falling
off a couch and hitting a coffee table.
The hospital staff at
Middlesboro Hospital then contacted Edward Denny, who is a family
services clinician employed by the Kentucky Cabinet for Families
and Children.
Denny’s investigation revealed a bruise on TRM’s
forehead, bruises on each cheek, and bruises on her buttocks.
Denny noted that the bruises on the child’s cheek appeared to be
the imprint of a thumb and forefinger.
On February 24, 1998, Denny obtained an emergency
protective order for TRM from the Bell Circuit Court.
Upon TRM’s
release from Middlesboro Hospital, she was placed by the Cabinet
with a paternal aunt and uncle, Lynn and David Wilson.5
On
February 26, 1998, Denny, along with his supervisor Karen Jones,
again interviewed Tonya concerning TRM’s bruises.
Denny
testified that during the interview, Tonya “was very upset,
5
Lynn Wilson is Robert Mason’s sister.
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weeping and very emotional.”
Tonya informed Denny and Jones that
she had grabbed and squeezed TRM’s face while attempting to
administer oral medication.
Tonya claimed that the bruise to
TRM’s buttocks occurred when she fell while climbing on her
brother’s bicycle.
TRM was returned to Tonya’s custody on
February 27, 1998.
On March 2, 1998, TRM was again rushed to the Pineville
Community Hospital after suffering a second episode of seizures.
TRM arrived “in a life-threatening condition” and was “gasping”
for breath.
She was intubated and given oxygen.
After TRM was
stabilized, she was transferred to the East Tennessee Children’s
Hospital in Knoxville, Tennessee, where she came under the care
of Dr. Joseph Childs.
Dr. Childs testified that a series of tests revealed
the presence of blood between TRM’s brain and skull, at the base
of her brain, and behind her retinas.
These test results showed
“hemorrhage around the brain, as well as hemorrhage in the eyes
themselves.”
The inability of the child’s family to provide an
explanation for these medical findings led Dr. Childs to conclude
that TRM was a victim of Shaken Baby Syndrome.6
6
Dr. Childs
Dr. Childs described “Shaken Baby Syndrome” as
a condition in which a child is violently
shaken, causing the brain inside the skull to
bounce back-and-forth, tearing veins that
connect the skull and the brain together
causing bleeding, especially over the areas
that are bouncing-the front and the back. As
well, the eye, the eye socket itself and the
eyeball in the eye socket is bouncing, and
(continued...)
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opined that the shaking incident had probably occurred “a few
hours” prior to TRM having her first seizures on February 23,
1998.
However, under cross-examination, Dr. Childs admitted that
he could not say with certainty when the shaking incident had
occurred and he conceded that in some cases a baby may have her
first seizure some days, weeks or even months after she was
shaken.
After TRM was released from East Tennessee Children’s
Hospital, she was placed by the Cabinet with the Wilsons, her
paternal aunt and uncle.
Since that time Tonya has been
permitted to see TRM only during monthly supervised visits.
TRM
has remained in the Wilsons’ custody and is by all accounts a
relatively healthy child.
On September 9, 1999, Tonya was indicted by a Bell
County grand jury for criminal abuse in the first degree.7
The
indictment alleged that Tonya “intentionally abus[ed] [TRM]
and/or . . . permitt[ed] Arlin Covey Brock to cause physical
injury to the person of [TRM], age [sic] 1 year old, who [was] in
her custody, by shaking her. . . .”
By separate indictment,
Covey was also indicted for criminal abuse in the first degree;
6
(...continued)
that causes tearing of the internal membranes
of the eye and bleeding.
7
KRS 508.100.
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and in an order entered on January 14, 2000, the two cases were
consolidated for purposes of trial.
Tonya and Covey were jointly
tried before a jury from January 9-11, 2001.
At the conclusion of the case for the Commonwealth,
both defendants moved the trial court to grant a directed verdict
of acquittal, and both motions were denied.
The parties then
presented their defenses, which included testimony from each
defendant.
At the conclusion of all the evidence, both
defendants again moved the trial court to grant a directed
verdict of acquittal.
This time the trial court granted Covey’s
motion but once again denied Tonya’s motion.
The trial judge
stated:
The motion for a directed verdict, as to the
Defendant, Tonya Brock, is overruled. The
motion for a directed verdict, as to the
Defendant, Covey Brock, is sustained. We
will proceed, be back in one hour. Mr.
Brock, the Court--has directed a verdict--is
directing a verdict of acquittal. This Court
has heard the evidence in this case. And
does not believe that the evidence in this
case is such that the jury should be
permitted to speculate, or surmise, about
your guilt. There is simply not enough
evidence here. Particularly, there is no
evidence, in other words, yes, there is
evidence of opportunity, but the time frame
in this case, is such that and also given the
fact that we have the most--a victim, a
victim that will garner the most sympathy
from the jury, which is only natural. I
simply don’t think--I think the jury has to
go in there, at this point in time, and make
a guess, as to whether or not Mr. Brock did
this. I do not think the Commonwealth has
presented sufficient evidence against this
Defendant, to submit this case to a jury,
given the fact that the indictment against
this Defendant is that he did, in fact, cause
this act. The Court’s ruling is different in
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the case of Mrs. Brock, because of the fact
that she is, also an element of her
indictment is that she had custody at the
time of the abuse of this child. That is it,
until the jury gets back.
The jury was instructed that it must find Tonya guilty
of criminal abuse in the second degree if it believed from the
evidence beyond a reasonable doubt “[t]hat in Bell County, from
on or about the 21st day of February, 1998, through on or about
the 26th day of February, 1998 and before the finding of the
Indictment herein, she wantonly abused [TRM] OR she had actual
custody of [TRM] and wantonly permitted her to be abused by
another person. . .” [emphasis added].8
Thus, the jury
instructions given by the trial court substantially deviated from
Tonya’s indictment by substituting the words “another person” for
“Arlin Covey Brock.”
Apparently, after the trial court granted
Covey a directed verdict of acquittal, the trial court realized
that Tonya could not be convicted under KRS 508.110 for any abuse
allegedly caused by Covey.
Accordingly, no direct reference to
Covey was included in Tonya’s jury instructions.
Tonya was convicted of criminal abuse in the second
degree and the jury recommended the minimum sentence of one year.
Tonya was sentenced to prison for one year on February 8, 2001,
and this appeal followed.9
The appellate brief filed on behalf of Tonya is
8
The jury was also instructed on criminal abuse in the first
degree and criminal abuse in the third degree.
9
Tonya was granted release on an appeal bond.
-7-
confusing.
The only legal argument raised in the brief was
summarized in the following heading:
The trial court erred to the appellant’s
substantial prejudice and denied the
appellant her constitutional rights to a fair
trial and due process of law as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution and
Sections Two and Eleven of the Kentucky
Constitution when the trial court gave a jury
instruction not supported by the facts
adduced at trial.
However, after a short discussion concerning the insufficiency of
the evidence and the denial of Tonya’s motion for a directed
verdict of acquittal, the brief goes off on a tangent about Tonya
being required “to defend against a charge different from the
charge in her indictment.”
The argument section of the
appellant’s brief concludes by returning to the claim that “the
evidence did not support the Commonwealth’s contention that an
unknown, other person committed the abuse.”
In the Commonwealth’s brief, it understandably chases
the wild goose that the appellant let loose.
In fact, both
parties expended a large part of their briefs discussing the
questions of preservation of error and palpable error in relation
to the jury instructions.10
10
However, when the issue on appeal is
The Commonwealth states in its brief:
Brock contends her motion for directed
verdict preserved this issue for appellate
review. However, the issue raised in her
appeal is whether there was palpable error in
the trial court using an instruction which
did not mirror the indictment. This issue
was not objected to at trial. A motion for
(continued...)
-8-
viewed as whether the Commonwealth presented sufficient evidence
to prove that Tonya “wantonly permitted” TRM to be abused by
Covey, it becomes obvious that Tonya properly preserved this
issue for appellate review by timely moving the trial court to
grant a directed verdict of acquittal.11
It is conceded by the Commonwealth that Covey was the
only person the jury instructions could have been referring to
when reference was made to “another person.”12
Thus, since the
trial court ruled that there was insufficient evidence of record
to support a finding by the jury that Covey abused TRM, the trial
court erred when it denied Tonya’s motion for a directed verdict
10
(...continued)
directed verdict does not serve to preserve
this type of claim. Thus, the issue is not
preserved.
11
Long v. Commonwealth, Ky., 559 S.W.2d 482, 485 (1977).
12
The Commonwealth states in its brief:
Brock has attempted to couch this
argument as an amendment of the indictment.
However, this is simply not the case. The
jury instructions tendered merely changed the
specific description that it was Arlin Covey
Brock who was permitted to abuse TRM to a
more general description of “another person.”
This is analogous to an indictment reading
that “John Doe murdered Victim by shooting
him with a .357 handgun” and the jury
instructions reading “John Doe murdered
Victim by shooting him with a handgun.”
There is no error here. The only evidence
presented to the jury was that either Brock
personally abused TRM or she permitted Covey
to abuse TRM while she was in Covey’s
custody.
-9-
of acquittal on the charge that she wantonly permitted TRM to be
abused by Covey.
The test for whether a trial court erred by denying a
motion for a directed verdict of acquittal was reiterated in
Commonwealth v. Benham:13
On motion for directed verdict, the
trial court must draw all fair and
reasonable inferences from the
evidence in favor of the
Commonwealth. If the evidence is
sufficient to induce a reasonable
juror to believe beyond a
reasonable doubt that the defendant
is guilty, a directed verdict
should not be given. For the
purpose of ruling on the motion,
the trial court must assume that
the evidence for the Commonwealth
is true, but reserving to the jury
questions as to the credibility and
weight to be given to such
testimony.
On appellate review, the test of a
directed verdict is, if under the evidence as
a whole, it would be clearly unreasonable for
a jury to find guilt, only then the defendant
is entitled to a directed verdict of
acquittal [citation omitted].
Since the trial court concluded that the evidence of record was
insufficient to induce a reasonable juror to believe beyond a
reasonable doubt that Covey had abused TRM, Tonya was entitled to
a direct verdict of acquittal on this theory of the
Commonwealth’s case against her.
The jury instruction for criminal abuse in the second
degree contained the conjunction “or” and allowed for a finding
13
Ky., 816 S.W.2d 186, 187 (1991).
-10-
of Tonya’s guilt under two separate theories.
Since there was
sufficient evidence to support a finding that Tonya was guilty of
wantonly abusing TRM herself, but not sufficient evidence to
support a finding that Tonya was guilty of wantonly permitting
another person to abuse TRM, it is not possible to conclude that
the jury was unanimous in its verdict finding Tonya guilty.14
The Commonwealth argues in its brief that “[t]he jury could
reasonably infer from these facts that TRM was violently shaken
by either Brock or Covey, because they were the only individuals
to have custody of TRM immediately prior to both seizures on
February 23, 1998, and March 2, 1998."
Thus, the Commonwealth
contends that the unanimous verdict requirement of Davis was
satisfied because “the evidence was sufficient to support a
conviction of abuse caused by Brock and a conviction based on her
permitting another to cause injury to TRM.”
This argument
ignores the trial court’s finding that the evidence was
insufficient to prove that Covey had abused TRM and the testimony
from the Commonwealth’s own expert.
Dr. Childs testified that based on the tests conducted
“[i]t is difficult to be very precise” “in trying to age the
blood that is there.”
Dr. Childs conceded that in a Shaken Baby
Syndrome case a baby can be shaken, lose consciousness, become
14
Davis v. Commonwealth, Ky., 967 S.W.2d 574, 582
(1998)(“Unanimity becomes an issue when the jury is instructed
that it can find the defendant guilty under either of two
theories, since some jurors might find guilt under one theory,
while others might find guilt under another. If the evidence
would support conviction under both theories, the requirement of
unanimity is satisfied” [citations omitted].
-11-
awake again and not have a seizure until days, weeks or even
months later.
Dr. Childs also stated that the blood on a shaken
child’s brain “can take weeks to months for it to finally be
reabsorbed.”
Thus, the Commonwealth is incorrect when it
attempts to limit the time period that this abuse to TRM could
have occurred to “immediately prior to both seizures on February
23, 1998, and March 2, 1998.”
The same evidence that the trial
court concluded would only leave the jury “to speculate, or
surmise” about Covey’s guilt was also insufficient to support a
finding of Tonya’s guilt for “wantonly permitt[ing] [TRM] to be
abused by another person.”
In Roberts v. Commonwealth,15 the former Court of
Appeals observed that if the evidence will sustain a finding of
guilt on one of the Commonwealth’s two theories of the case but
not the other, so much of the indictment as charges a commission
of the crime in the other manner is surplusage, and an
instruction embracing both theories “may be prejudicial if it
invites the possibility of conviction on a theory not sustained
by the evidence.”16
In its conclusion to its brief, the Commonwealth cites
Commonwealth v. Sego,17 for the proposition that “even if a coconspirator or co-defendant is acquitted of or not charged with
the offense, the co-defendant could still be convicted.”
15
Ky., 339 S.W.2d 640, 642 (1960).
16
Id. at 642.
17
Ky., 872 S.W.2d 441, 443 (1994).
-12-
The
Commonwealth’s reliance on Sego is misplaced.
Sego concerned the
application of KRS 506.070(3) which provides that “[a] defendant
cannot be convicted of conspiracy if all of his co-conspirators
have been acquitted or discharged under circumstances amounting
to an acquittal.”
The case sub judice does not involve a
conspiracy; and if it did, since Covey was acquitted, Sego would
support Tonya, not the Commonwealth.
Additionally, KRS 502.030
is of no benefit to the Commonwealth’s position since it applies
only to prosecutions under KRS 502.01018 and KRS 502.02019 which
were not applicable to the case sub judice.
For the foregoing reasons, the trial court erred when
it denied Tonya’s motion for a directed verdict of acquittal on
the theory that she wantonly permitted TRM to be abused by
another person; however, since there was sufficient evidence to
support a finding of guilt that Tonya herself wantonly abused
TRM, Tonya was not entitled to a directed verdict on that theory
of the Commonwealth’s case.
Accordingly, we reverse the judgment
of conviction of the Bell Circuit Court and remand this case for
a new trial only on the charge that Tonya committed criminal
abuse in the second degree by wantonly abusing TRM.
KNOPF, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
18
“[A]n offense committed by an innocent or irresponsible
person[.]”
19
“[P]romoting or facilitating the commission of the
offense[.]”
-13-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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