LASHONDA GAYLE CLIFT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
MAY 2, 2003; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001721-MR
LASHONDA GAYLE CLIFT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 00-CR-00490
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Lashonda Gayle Clift has appealed from a
judgment entered by the Fayette Circuit Court, on July 18, 2001,
which convicted her of criminal abuse in the third degree1 and
sentenced her to two days in jail and a $250.00 fine.
Having
concluded that the evidence presented at trial was sufficient to
convict Clift, that she was not subjected to double jeopardy,
1
Kentucky Revised Statutes (KRS) 508.120.
and that Clift’s other claims of error were not preserved for
review, we affirm.
At the time of the events giving rise to the criminal
charge in this case, Clift operated a day-care center at her
home.
On January 31, 2000, the victim’s grandparents arrived at
Clift’s home to pick up three grandchildren, including two, twin
grandsons, Jack and Zack.
The grandfather noticed that 11-
month-old Jack was fussier than usual, that his left arm was
hanging down, and that he appeared to be gasping for breath.
As
the grandparents attempted to put a snow-suit on Jack, he began
screaming.
Jack was taken to the grandparents’ home where they
inspected Jack’s arm, which appeared to be seriously bothering
him.
Jack was taken to the hospital emergency room, where
doctors diagnosed him with a fracture of his upper left arm.
Jack’s family reported this incident to the Crimes Against
Children Unit of the Lexington-Fayette County Police Department.
The complaint was received by Detective Ann Gutierrez, who
commenced an investigation of Clift.
At Clift’s jury trial, Det. Gutierrez testified that
during an interrogation Clift stated that she was likely
responsible for Jack’s injury.
Clift allegedly told Det.
Gutierrez that she had witnessed Jack trying to awaken his twin
brother during his nap time, and that in her attempt to prevent
him from doing so, she had grabbed Jack by his arm and yanked
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him away from his brother.
When Clift testified at the trial,
she denied that she told Det. Gutierrez that she had caused
Jack’s injury.
Clift insisted that when she picked Jack up, she
lifted him gently by both arms.
On May 8, 2000, a Fayette County grand jury returned
an indictment against Clift for the offense of criminal abuse in
the second degree, a Class D felony.2
The case went to trial on
November 6, 2000, but prior to the swearing of the jury, the
Commonwealth informed the court that a portion of Det.
Gutierrez’s notes from her interrogation of Clift had not been
provided during discovery.
Based on the Commonwealth’s
concession, the trial court dismissed the jury and continued the
case.
On April 17, 2001, a jury was again empanelled and
this time it was sworn.
However, during Det. Gutierrez’s
testimony, it was revealed that the Commonwealth had not
disclosed to the defense the existence of a taped telephone
conversation between Jack’s mother and Clift.3
The trial court
sustained a defense motion for a mistrial and the case was once
again continued.
A jury trial was completed on June 19, 2001, and Clift
was convicted of criminal abuse in the third degree, a Class A
2
KRS 508.110.
3
See Kentucky Rules of Criminal Procedure (RCr) 7.24.
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misdemeanor.
The jury recommended a sentence of two days in
jail and a $250.00 fine, which the trial court imposed in a
judgment entered on July 18, 2001.
This appeal followed.
Clift claims the evidence presented at trial was
insufficient to support her conviction of criminal abuse in the
third degree and that the trial court erred by denying her
motion for a directed verdict of acquittal.
Our standard of
review of the denial of a motion for a directed verdict of
acquittal is well established:
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.4
KRS 508.120 sets forth the following elements for
criminal abuse in the third degree:
(1)
A person is guilty of criminal abuse in
the third degree when he recklessly
4
Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991)(citing Commonwealth
v. Sawhill, Ky., 660 S.W.2d 3 (1983)).
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abuses another person or permits
another person of whom he has actual
custody to be abused and thereby:
(a)
Causes serious physical injury; or
(b)
Places him in a situation that may
cause him serious physical injury;
or
(c)
Causes torture, cruel confinement
or cruel punishment;
to a person twelve (12) years of age or
less, or who is physically helpless or
mentally helpless [emphases added].
(2)
Criminal abuse in the third degree is a
Class A misdemeanor.
Specifically, Clift claims that Jack’s injury was not a “serious
physical injury”, which is defined by KRS 500.080(15) as
follows:
“Serious physical injury” means 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[] [emphases
added].
The medical evidence at trial demonstrated that Jack
suffered a complete fracture of the humerus, and it took
approximately four to six weeks for the fracture to heal.
Jack
had to wear a splint and a sling for approximately four of those
weeks, and his mobility was significantly impaired during this
period.
Thereafter, Jack resumed normal activities, and the
medical testimony indicated that this type of injury to an 11-
-5-
month-old child generally requires a period of between 18 and 24
months to completely heal.
At the time of the trial, Jack had
fully recuperated from the injury and he suffered no permanent
disfigurement or lingering pain.
The question before this Court
is whether the evidence at trial was sufficient to induce a
reasonable jury to believe beyond a reasonable doubt that Jack’s
injury constituted a “serious physical injury.”
In its brief
the Commonwealth fails to identify which section of the
definition of “serious physical injury” is applicable to Jack’s
injury; but during its closing argument, the Commonwealth argued
that Jack’s physical injury created “prolonged impairment of
health” and
“prolonged loss or impairment of the function of
any bodily organ.”
Souder v. Commonwealth,5 is the only Kentucky case
which addressed the question of how serious an injury would have
to be for it to constitute a serious physical injury.6
In
Souder, our Supreme Court reversed a conviction for assault in
the first degree because the Commonwealth had failed to present
sufficient evidence that the victim’s injuries met the
5
Ky., 719 S.W.2d 730 (1986).
6
Souder only discussed the definition of “serious physical injury” in the
context of “a substantial risk of death,” but we must assume that our Supreme
Court also held by implication that the evidence was also insufficient to
establish “prolonged impairment of health” or “prolonged loss or impairment
of the function of any bodily organ.” The Commonwealth cites Johnson v.
Commonwealth, Ky.App., 926 S.W.2d 463, 465 (1996), but in Johnson this Court
held that “[t]he injuries inflicted on this baby leave no doubt that broken
bones, head injuries, and fractured ribs are injuries which created a
substantial risk of death[,]” which is not alleged herein.
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definition of a “serious physical injury.”
Souder had been
accused of sexually and physically abusing his girlfriend’s 2
1/2 year old daughter.
The evidence at trial showed that the
child had “bruising and tearing in both the vaginal and anal
areas[;]” “burns in and about the mouth” which may have been
caused by “a cigarette, or a cigarette lighter[;]” “multiple
areas of substantial bruising about her body[;]” and “a badly
swollen arm.”
The Supreme Court stated that “[a]ll of the
physical injuries proved to be relatively minor, and were
successfully treated by the emergency room[s] . . . at the
various hospitals[,]” and “[n]one has required subsequent
treatment, and there is no indication of any permanent physical
injury.”
While the Supreme Court recognized the “hideous
nature” of such acts, it held that these injuries did not meet
the definition of “serious physical injury” under KRS
500.080(15).7
There have been numerous cases from other
jurisdictions which have addressed the specific issue before us.8
“Courts addressing the question whether a single type of injury
involving broken bones constituted sufficient bodily injury to
support aggravated assault have generally found them sufficient
7
Id. at 731-32.
8
Tracy A. Bateman, J.D., Annotation, Sufficiency of Bodily Injury to Support
Charge of Aggravated Assault, 5 A.L.R.5th 243 (1992).
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under the facts or evidence presented at trial where the victim
suffered a broken ankle, arm, back, cheek bone, collarbone,
finger, hand, jaw, leg, nose, rib, shoulder, and skull.”9
In
State v. Fitzgerald,10 the Court of Appeals of Missouri affirmed
a mother’s conviction for assault in the second degree for
breaking her 11-month-old daughter’s arm.
The statute in
question included in its definition for “serious physical
injury” a physical injury that causes “protracted loss or
impairment of the function of any part of the body.”
The Court
stated that “protracted”11 “means something short of permanent,
but more than of short duration[,]” [and] [w]hat is considered
‘protracted’ depends on the circumstances.”12
The Court noted
that the infant “was hospitalized for three days and wore a
plaster splint for four weeks[;]” and then stated that “[w]hile
there is no set formula regarding what amount of time
constitutes ‘protracted,’ we find that four weeks in the life of
an infant is enough to constitute ‘less than permanent but more
than of short duration.’”13
9
10
Id. at 276.
Mo.App., 778 S.W.2d 689 (1989).
11
“Protracted” is defined as “prolonged in time or space.”
Collegiate Dictionary (10th ed. 1999).
12
Merriam Webster’s
Id. at 692 (citing State v. Simmons, Mo.App., 751 S.W.2d 85, 90 (1988)).
13
Id. (citing State v. Briggs, Mo.App., 740 S.W.2d 399, 401 (1987); and State
v. Mentola, Mo.App., 691 S.W.2d 420, 422 (1985)).
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The Court of Appeals of Missouri in Briggs, supra, had
held that there was sufficient evidence to support a jury’s
verdict of guilty in a conviction for assault in the second
degree, when the victim, who had suffered a beating at the hands
of Briggs, had suffered “an undisplaced fracture of the tenth
rib on the left side.”14
The victim’s doctor stated that the
“prescribed course of treatment was rest to permit the fracture
to heal[,]” and “[h]e said the normal healing time for such an
injury was a maximum of four to six weeks.”15
The victim
“testified that he missed 20 days of work because of the injury
and, during that period, he experienced ‘a lot of pain.’”16
The
Court determined that “[t]he evidence was sufficient to make a
submissible case on the issue of whether the victim suffered a
serious physical injury.”17
This Court in Rowe v. Commonwealth,18 reversed a
conviction for assault in the second degree and remanded the
case for a new trial with the jury instructions to include both
14
Briggs, 740 S.W.2d at 400.
15
Id.
16
Id.
17
Id. at 401. (The definition for “serious physical injury” once again
required the physical injury to cause “protracted loss or impairment of the
function of any part of the body.” See also People v. Mohammad,
N.Y.App.Div., 162 A.D. 367, 557 N.Y.S.2d 35 (1990), where the Court held that
the victim had suffered “protracted impairment of health” “based upon the
evidence that she suffered a fractured humerus requiring several weeks of
immobilization.”)
18
Ky.App., 50 S.W.3d 216, 221 (2001).
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assault in the second degree and assault in the fourth degree.
This Court held that the question of whether the injury created
“prolonged impairment of health” “was a proper question for the
jury to determine.”
Likewise, in the case sub judice reasonable
people could differ as to whether the injury suffered by Jack
caused “prolonged impairment of health” or “prolonged loss or
impairment of the function of any bodily organ.”
Accordingly,
we hold that a reasonable juror could find that the significant
impairment of the use of an 11-month-old child’s arm for a fourweek period constitutes either “prolonged impairment of health”
or “prolonged loss or impairment of the function of [a] bodily
organ” and thus constitutes a “serious physical injury” under
KRS 500.080(15).
Clift also claims that her retrial should have been
barred by her constitutional protection not to be subjected to
double jeopardy.19
Clift claims the Commonwealth acted in bad
faith in causing two mistrials.
As noted previously, it took
three separate attempts to try and convict Clift.
After the
first mistrial, the trial court ordered the Commonwealth to
divulge all evidence concerning any incriminating statements
Clift may have made during the investigation.
After turning
over notes concerning Det. Gutierrez’s interrogation of Clift,
the Commonwealth stated that it believed it was now in
19
Fifth Amendment to the Constitution of the United States and Section 13 of
the Kentucky Constitution.
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compliance with the trial court’s discovery orders.
However,
during the presentation of the Commonwealth’s evidence at the
second trial, it was discovered that Clift had not been informed
about the tape recorded telephone conversation between her and
the victim’s mother.
Clift argues that the Commonwealth’s
failure to disclose this evidence, after the trial court’s
specific ruling that all such evidence must be disclosed,
constituted bad faith on the part of the Commonwealth.
Clift
argues that the Commonwealth’s actions gave her no choice but to
move for a mistrial, and that her subsequent retrial should have
been barred on double jeopardy grounds.
In general, a party who moves for a mistrial may not
thereafter invoke the bar of double jeopardy to prevent
retrial.20
Thus, when the party who moved for a mistrial below
seeks to prevent her retrial upon double jeopardy grounds, she
must show that the conduct giving rise to the order of mistrial
was precipitated by bad faith, overreaching or some other
fundamentally unfair action of the prosecutor or the court.21
In
the case sub judice, the trial court found that no prosecutorial
misconduct had occurred.
The discovery omission was apparently
due to miscommunication between the Commonwealth’s Attorney’s
20
Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).
21
Tinsley v. Jackson, Ky., 771 S.W.2d 331, 332 (1989)(citing United States v.
Larry, 536 F.2d 1149 (6th Cir. 1979); United States v. Love, 597 F.2d 81 (6th
Cir. 1976); and Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988)).
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office and Det. Gutierrez.
The trial court found that no
fundamental unfairness resulted from the retrial of the case.
From our review of the record, we are unable to say that the
trial court’s factual determinations were clearly erroneous or
that its ruling constituted an abuse of discretion.22
Therefore,
we affirm the trial court’s ruling that Clift’s retrial was not
barred on double jeopardy grounds.
Clift also claims the trial court erred by “not
granting a mistrial when [the] Commonwealth’s witness made
reference to [an] inadmissible polygraph test in her testimony.”
Clift misrepresents the record when she states in her brief that
the “Judge overruled [the] motion for a mistrial and then gave
an admonition to the jury to disregard any mention of the test
and [that] they [sic] were not admissible.”
The record clearly
shows that counsel never asked the trial court for a mistrial.
Accordingly, this issue was not preserved for our review and
will not be discussed any further.
Similarly, Clift’s claim that Det. Gutierrez “was
allowed to present hearsay testimony when she read from another
officer[’]s notes in her testimony” was not preserved for our
review.
The record shows that defense counsel objected to the
witness reading from her notes, but had not objected to her
using the notes to refresh her memory.
22
Tinsley, 771 S.W.2d at 332.
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After this concern was
addressed by the trial court, the witness continued to testify
without any further objection.
Accordingly, the alleged error
was not preserved for appellate review.
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Nick Payne
Lexington, Kentucky
Albert B. Chandler III
Attorney General
ORAL ARGUMENT FOR APPELLANT:
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
Matthew Boyd
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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