JAMES HENRY JOHNSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002215-MR
JAMES HENRY JOHNSON
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE JOHN W. McNEILL, III, JUDGE
ACTION NO. 05-CR-00046
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
James Henry Johnson has appealed from a
judgment entered on September 23, 2005, by the Mason Circuit
Court following a jury conviction for assault in the first
degree.1
Having concluded that there was sufficient evidence to
support a conviction for intentional assault and wanton assault,
we affirm.
1
Kentucky Revised Statutes (KRS) 508.010.
On April 23, 2005, Johnson and Steffon Cameron were
visiting at a friend’s house.
As Cameron was leaving the
residence, Johnson followed him down the steps and struck him in
the head with a glass beer mug.
Cameron sustained multiple
lacerations to his head, requiring some 400 stitches and
hospitalization.
On May 27, 2005, a Mason County grand jury indicted
Johnson for assault in the first degree.
At a jury trial held
on August 22, 2005, the Commonwealth introduced testimony that
there had been past tension between Johnson and Cameron prior to
this incident.
Frank Glover testified that he had been drinking
with Johnson and Cameron and that there was a disagreement
between Johnson and Cameron.
Johnson also testified to a heated
argument and admitted that he intended to strike Cameron in the
head with the mug.
Contrary testimony was presented by Cameron
who testified that there had been no argument between Johnson
and him and that Johnson struck him for no apparent reason.
Valerie Jackson testified that Johnson had bragged to her about
his assaulting Cameron.
At the close of all the proof, Johnson’s motion for a
directed verdict of acquittal was denied.
The Commonwealth
submitted jury instructions on assault in the first degree under
the theories of intentional conduct and wanton conduct.
The
trial court overruled Johnson’s objection to the instructions
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which was based on his contention that the Commonwealth should
elect which theory to submit to the jury.
Both theories were
presented to the jury in a combined instruction, which provided
as follows:
INSTRUCTION NO. 1
FIRST-DEGREE ASSAULT
You will find the Defendant James Henry
Johnson Guilty of First-Degree Assault under
this Instruction if, and only if, you
believe from the evidence beyond a
reasonable doubt all of the following:
A.(1) That in this county on or about April
23, 2005 and before the finding of the
Indictment herein, he intentionally
caused a serious physical injury to
Steffon Cameron by hitting him on the
head with a mug thereby cutting him;
OR
(2)
AND
B.
That in this county on or about April
23, 2005 and before the finding of the
Indictment herein and under
circumstances manifesting the extreme
indifference to the value of human life
he wantonly engaged in conduct which
created a grave risk of death to
Steffon Cameron and thereby caused
serious physical injury to Steffon
Cameron;
That the mug was a dangerous
instrument as defined under Instruction
No. DEFINITIONS;
AND
C.
That in so doing, the Defendant was
not privileged to act in selfprotection [emphasis added].
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Following the jury’s guilty verdict on assault in the
first degree under this instruction, the Commonwealth agreed to
the minimum prison sentence of ten years.
The trial court
accepted the sentencing plea agreement and sentenced Johnson on
September 23, 2005.
This appeal followed.
Johnson argues that there was insufficient evidence to
support a finding that he acted either intentionally or wantonly
in assaulting Cameron.
He claims the trial court first erred by
denying his motion for a directed verdict of acquittal, and then
further erred by submitting to the jury the alternative theory
of wanton assault.
Since we conclude there was sufficient
evidence to support Johnson’s conviction under either theory, we
affirm.
An appellate court’s review of a trial court’s denial
of a motion for directed verdict of acquittal is set forth in
Commonwealth v. Benham:2
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.
2
816 S.W.2d 186 (Ky. 1991).
-4-
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.3
The assault statute Johnson was charged under provides
as follows:
(1)
A person is guilty of assault in the
first degree when:
(a)
(b)
(2)
He intentionally causes serious
physical injury to another person
by means of a deadly weapon or a
dangerous instrument; or
Under circumstances manifesting
extreme indifference to the value
of human life he wantonly engages
in conduct which creates a grave
risk of death to another and
thereby causes serious physical
injury to another person.
Assault in the first degree is a Class
B felony.4
The jury instructions included the above elements of
intentional assault and wanton assault with the following
definitions:
Intentionally—A person acts intentionally
with respect to a result or to conduct when
his conscious objective is to cause that
result or to engage in that conduct.
Wantonly—A person acts wantonly with respect
to a result or to a circumstance when he is
3
Benham, 816 S.W.2d at 187.
4
KRS 508.010.
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aware of and consciously disregards a
substantial and unjustifiable risk that the
result will occur or that the circumstance
exists. The risk must be of such nature and
degree that disregard thereof constitutes a
gross deviation from the standard of conduct
that a reasonable person would observe in
the situation. [A person who creates such a
risk but is unaware thereof solely by reason
of voluntary intoxication also acts wantonly
with respect thereto.]
Having reviewed the evidence in the case before us in
the light most favorable to the Commonwealth, we conclude that a
reasonable juror could believe that when Johnson swung the mug
at Cameron’s head, his conscious objective was to strike
Cameron, thereby causing serious physical injury.
Johnson
admitted that he intended to strike Cameron in the head with the
mug, but claimed he did not intend to cause such serious
physical injury.
However, his conscious objective of striking
Cameron in the head with the mug alone is sufficient to meet the
mens rea requirement of intentional assault since “a person is
presumed to intend the logical and probable consequences of his
conduct[.]”5
Further, since “[i]ntent to kill can be inferred
from the extent and character of a victim’s injuries[,]”6 intent
to injure can also.
The seriousness of Cameron’s resulting
injury is not disputed.
Thus, there was sufficient evidence
that Johnson intentionally caused serious physical injury to
5
Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998) (citing Parker v.
Commonwealth, 952 S.W.2d 209, 212 (Ky. 1997)).
6
Id.
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Cameron, and the trial court correctly denied the motion for a
directed verdict of acquittal and properly instructed the jury
on intentional assault in the first degree.
As to the elements of wanton assault, the evidence
supported a finding that when Johnson swung the mug at Cameron’s
head, he manifested extreme indifference to the value of human
life and consciously disregarded a substantial and unjustifiable
risk that Cameron could have been killed.
Such conduct was a
gross deviation from the standard of conduct a reasonable person
would observe in that situation.
Johnson does not dispute that
the degree of force with which he struck Cameron was sufficient
to cause serious physical injury requiring numerous stitches to
Cameron’s head.
Common sense dictates that an adult’s swinging
of a glass beer mug and striking a person’s head with such force
as to seriously injure the person, show an extreme indifference
to the value of human life and a conscious disregard of a
substantial and unjustified risk of death.
At the time Johnson
struck Cameron from behind with the mug, Cameron was leaving the
apartment.
Any argument was over, but Johnson continued to
follow Cameron outside the apartment.
Thus, the evidence
demonstrates Johnson’s conduct was totally unjustified and a
gross deviation from how a reasonable person would have acted.
Therefore, the trial court properly denied the motion for
-7-
directed verdict of acquittal and correctly instructed the jury
on wanton assault.7
Our affirmance as to the sufficiency of the evidence
regarding the alternative theories of assault also disposes of
Johnson’s second argument since the Commonwealth has shown “that
it has met its burden of proof under all alternate theories[.]”8
In Wells v. Commonwealth,9 the Supreme Court of Kentucky stated:
KRS 508.010 brings together two distinct
culpable mental states (intent and
wantonness manifesting extreme indifference
to the value of human life) and punishes
them equally under specified circumstances.
Either mental state will support a
conviction of assault in the first degree
and punishment for such crime. The legal
effect of the alternative conclusions is
identical. . . . We hold that a verdict can
not be successfully attacked upon the ground
that the jurors could have believed either
of two theories of the case where both
interpretations are supported by the
evidence and the proof of either beyond a
reasonable doubt constitutes the same
offense [emphasis added].
As previously stated, in the case before us a
reasonable juror could infer that Johnson intended to cause
serious physical injury to Cameron or, that under circumstances
7
While we find no reversible error in the trial court’s instructions to the
jury, we must note that the combined intentional and wanton instruction is
not preferred in this Commonwealth. It is preferred practice to include a
form, which requires the jury to report which theory the conviction is based
upon. See Hudson, 979 S.W.2d at 110.
8
Burnett v. Commonwealth, 31 S.W.3d 878, 883 (Ky. 2000).
Commonwealth, 561 S.W.2d 85 (Ky. 1978).
9
561 S.W.2d 85, 88 (Ky. 1978).
-8-
See also Wells v.
manifesting extreme indifference to the value of human life, he
created a grave risk of death to Cameron and thereby caused
serious physical injury to him.
Thus, in viewing the evidence
as a whole, it was not unreasonable for a jury to find Johnson
guilty of either intentional assault or wanton assault in the
first degree.
For the foregoing reasons, the judgment of the Mason
Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Angela Johnson
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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