PHILIP BEASLEY PELLANT V. COMMONWEALTH OF KENTUCKY
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PUBLISHED." PURSUANT TO THE RULES OF
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED : DECEMBER 18, 2003
NOT TO BE PUBLISHED
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2001-SC-0539-MR
DATE 1-1 ,:, 'xi'",
PHILIP BEASLEY
V.
PELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H . MONARCH, JUDGE
99-CR-00127 AND 99-CR-00176
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART; REVERSING AND REMANDING IN PART
I. INTRODUCTION
After a jury trial, Appellant was convicted of First-Degree Criminal Abuse, two
counts of First-Degree Assault, Third-Degree Criminal Mischief, and two counts of
Second-Degree Escape. He was further found to be a Second-Degree Persistent
Felony Offender ("PFO"), and he received : (1) an enhanced sentence of ten (10) years
on the First-Degree Criminal Abuse conviction ; (2) an enhanced sentence of twenty (20)
years on each First-Degree Assault conviction ; (3) a sentence of ninety (90) days on the
Third-Degree Criminal Mischief conviction, and (4) a sentence of one (1) year on each
Second-Degree Escape conviction .' In accordance with the jury's recommendation, the
trial court ordered the sentences to run concurrently with each other for a total sentence
' The trial court did not authorize the jury to impose enhanced sentences for the
Second-Degree Escape convictions .
of twenty (20) years . Appellant appeals to this Court as a matter of right, and in
seeking reversal of his convictions, he identifies six (6) issues for our consideration : (1)
"Insufficiency of the evidence of the charge of Criminal Abuse as to D .H." ; (2) "Improper
instructing of the jury on the charge of First-Degree Assault and failure to instruct on
lesser-included [offense] of Second-Degree Assault" ; (3) "Refusal to grant a mistrial
when the co-defendant stood in front of the jury box and loudly stated that she `could
not stand to be near' [Appellant]" ; (4) "Improper joinder of trials of [Appellant and his
codefendant]" ; (5) "Error to allow A. H ., a minor to testify when he was incompetent to do
so," and (6) "Error to hold the PFO hearing prior to the jury's fixing of punishment on
underlying offenses ." We affirm Appellant's convictions for First-Degree Criminal
Abuse, Third-Degree Criminal Mischief, and Second-Degree Escape (two counts) . We
affirm the determination that he is a Second-Degree Persistent Felony Offender. We
reverse his First-Degree Assault convictions and remand counts three (3) and four (4) of
indictment number 99-CR-00176 for a new trial .
II. FACTUAL BACKGROUND
On September 22, 1999, D.H., age three (3), and A.H ., age four (4), were
admitted to Twin Lakes Regional Medical Center in Leitchfield, Kentucky. Both children
were comatose; after tests revealed their condition was the result of the ingestion of
antidepressants, the children were stat-flighted to Kosair Children's Hospital in
Louisville, Kentucky. They were accompanied by their mother, Pamela Rose Higdon
("Higdon"). Dr. Sanjay Shah, the attending physician at Twin Lakes Regional Medical
Center, testified that their comas were due to the ingestion of high levels of
antidepressants and that the level of drugs in their systems was life-threatening .
2 Ky. CONST. § 110(2)(b) .
The subsequent clinical forensic examination performed by Dr. Amy Burrows at
Kosair revealed the presence of high levels of amitriptyline, nortriptyline, and
benzodiazepine in both children . Dr. Burrows testified that these types of drugs were
not recommended for and were rarely prescribed to children. She stated that the levels
would be considered "supra-therapeutic" in adults, that the high dosage administered to
the children was responsible for their comatose state, and that the condition of both
children had been very serious .3 Dr. Burrows also testified that Higdon denied having
the type of drugs detected in the children in her home, despite having been to the
pharmacy the day before to fill a prescription for amitriptyline (Elavil) and alprazolam
(Xanax) for Appellant. Dr. Burrows further testified that Higdon stated that the only
medications she kept in her home were Tylenol, cough syrup, and Benadryl .
The physical examination of D .H . revealed bruising and abrasions on the child's
extremities, cheeks, ear, forehead, buttocks, rectum, and penis . The physical
examination of A.H., however, revealed no "significant cutaneous injuries or evidence of
sexual abuse ."
Dr. Burrows testified that the bruises on D .H . were of multiple ages and at
various stages of healing, that the bruises and scar tissue around the rectum were
consistent with something penetrating the anus, and that Higdon's explanation for the
injuries was inconsistent with the nature and extent of the injuries. Higdon stated that
the injuries to D .H . were likely the result of various falls and mishaps such as falling off
of the porch, a reaction to poison oak, hitting his head and cheeks on the wooden bunk
bed, and playing with dogs and cats . She also suggested that the rectal tears could be
attributed to straining with diarrhea .
3 Both children have experienced a full physical recovery.
-3-
A.H . and D .H . lived with Higdon and Appellant, their mother's boyfriend . Higdon
and Appellant had two daughters, ages 3 months and 14 months, that also lived in the
home. Testimony at trial revealed a general timeline of the events on September 22,
1999 . Although both children were somewhat ill that day, Higdon took A.H . to school
around 10 a.m . She also filled a prescription for Elavil and Xanax for Appellant, stopped
at a gas station, and then returned home . Appellant remained at home throughout the
day with D.H . and the couple's two young daughters. Higdon again left the home
around 3:30 p.m . to pick up A.H . from the bus stop. During this time, D.H . apparently
suffered a seizure and Appellant called his sister in law, Belvina Logsdon ("Logsdon")
for assistance . When Logsdon arrived, Higdon had already returned home and they
decided that Appellant would stay home with the younger children and Logsdon would
drive D.H., Higdon, and A.H., to the hospital . En route to the hospital, Logsdon stopped
to change a bandage for her father, a task that consumed approximately 30 minutes .
According to Logsdon, A .H . "fell asleep" sometime after the stop, and when they arrived
at the hospital between an hour to an hour and a half after leaving Higdon's home, both
A.H . and D .H . were comatose.
Once the condition of the children was made known to local officials, Don Alvey
("Alvey"), a supervisor with the Cabinet for Families and Children (CFC) in Grayson
County, obtained an emergency protective order to place the two younger children into
foster care . Deputy Sheriffs Poteet and Clodfelter were dispatched to the Higdon home,
along with Alvey, to remove the two children and to take Appellant into custody on two
unrelated felony bench warrants . Both Deputy Poteet and Alvey testified that when
Appellant was informed of the nature of the physical abuse to D.H ., Appellant denied
4 Sheriff Hudson testified that the trip from the Higdon home to the Twin Lakes
Hospital would generally take around 20 minutes .
any knowledge or responsibility for the abuse, he twice attempted to escape, and he
begged to be shot. Appellant indicated that he had spoken with Higdon regarding the
condition of A.H. and D .H ., and that she had informed him that the children had
ingested Xanax. He also suggested two possible suspects for the physical abuse of the
boys .
Deputy Sheriff Ernie Steff, the lead investigator on the case, testified that during
a recorded interview, Higdon was asked the following question : "You knew that your
children were being abused and that's why you did not want to take them to the hospital
or was reluctant to take them to the hospital because you knew there would be
questions asked about the injuries on [D.H.]. It that not true Rosie?" to which she
answered, "Yes sir." Also at trial, Sheriff Joe Brad Hudson testified regarding several
letters he had received from Appellant, noting that in the letters Appellant stated that he
had heard Higdon speak of placing a clamp or clothespin on D.H .'s penis because of his
proclivity to wet himself. Sheriff Hudson also testified that Appellant's letters indicated
that A.H . and D.H. appeared to require more sleep in the days preceding the incident,
and that bruising had appeared on their bodies more frequently .
A.H . testified for the Commonwealth . He remembered his illness, and when
questioned as to the reason he became sick, A.H . stated that he got sick because
Appellant gave him pills in his mouth, nose, and "butt." A.H . also testified to witnessing
Appellant similarly forcing pills into D .H .'s "butt."
Appellant was charged under indictment number 99-CR-00127 with First-Degree
Criminal Mischief6 and two (2) counts of Second-Degree Escape .' Under indictment
5 The trial court determined that D.H . was not competent to testify .
6 This charge resulted from damage to the Grayson County Sheriff's vehicle
during Appellant's arrest .
number 99-CR-00176, he was additionally charged with First-Degree Criminal Abuse of
both D.H. and A.H ., First-Degree Assault of both D.H. and A.H., First-Degree Sodomy
of D .H ., and being a First-Degree Persistent Felony Offender. The PFO charge was
amended to Second-Degree Persistent Felony Offender, and during the trial, the charge
of First-Degree Criminal Mischief was amended to Third-Degree Criminal Mischief . At
the close of the Commonwealth's case, the court directed a verdict on the sodomy
charge, and it was dismissed . The jury found Appellant guilty of First-Degree Criminal
Abuse as to D.H., First-Degree Assault of both D .H. and A.H ., Third-Degree Criminal
Mischief, and two (2) counts of Second-Degree Escape . Appellant was found not guilty
of First-Degree Criminal Abuse of A.H . The jury then determined that Appellant was a
Second-Degree Persistent Felony Offender and sentenced him to an enhanced
sentence of twenty (20) years imprisonment on each assault conviction and an
enhanced sentence of ten (10) years imprisonment on the criminal abuse conviction .
Appellant was also sentenced to one (1) year imprisonment on each of the escape
charges and ninety (90) days on the criminal mischief charge . All sentences, in
accordance with the jury's recommendation, were ordered to run concurrently for a total
sentence of twenty (20) years . As previously mentioned, Appellant appeals to this
Court as a matter of right and raises six (6) claims of error.
III. ANALYSIS
A. Denial of Motion for Directed Verdict on the Charge of Criminal Abuse of D.H.
Before addressing his sufficiency of the evidence issue, however, Appellant first
argues a subissue . He claims that the trial court erred in "effectively allow[ing] the
These charges resulted from Appellant's attempts to escape after his arrest on
unrelated felony bench warrants .
Commonwealth to amend the indictment ." This subissue was not preserved, but we
nevertheless address it and find that it is without merit .
Appellant argues that "the Commonwealth was proceeding under a theory that
the [Appellant's] abuse had 'cause[d] serious physical injury' to the children," and that
the trial court amended the indictment when it allowed the Commonwealth to "proceed
under the `torture, cruel confinement, or cruel punishment' prong" of KRS 508.100 . We
disagree .
As to the criminal abuse count, the indictment charged :
[T]he defendant, Phillip Wayne Beasley, unlawfully
committed the offense of Criminal Abuse in the First Degree,
when he, acting alone or in complicity with others,
intentionally abused or permitted another person to abuse
[D .H.] (a child three years of age of whom he had actual
custody) . . . .
Thus, the indictment itself did not specify the consequence of the abuse, and Appellant
did not file a bill of particulars $ seeking information about the particulars of the charge.9
For these reasons, the Commonwealth was not limited to showing "serious physical
injury" but was properly allowed by the trial court to also "proceed under the `torture,
cruel confinement, or cruel punishment' prong" of KRS 508.100, and no amendment of
the indictment was necessary for the Commonwealth to do so. If Appellant's trial
counsel believed more specificity was necessary to adequately defend against the
8 RCr 6.22 .
9 Wolbrecht v. Commonwealth , Ky., 955 S .W.2d 533, 538 (1997) ("The function
of the Bill of Particulars in a criminal case is to provide information fairly necessary to
enable the accused to understand and prepare his defense against the charges without
prejudicial surprise upon trial.") .
charge, she could have filed a motion for a bill of particulars,' ° and by failing to do so,
she waived this issue.
We will now address Appellant's claim that the evidence was insufficient to
support his conviction of First-Degree Criminal Abuse in violation of KRS 508 .100,
which provides :
(1) A person is guilty of criminal abuse in the first
degree when he intentionally 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 .
Appellant claims that because the evidence was insufficient to support the charge of
criminal abuse of D.H ., the trial judge erroneously denied his directed verdict motion
that he renewed at the close of all of the evidence," and therefore his conviction for
First-Degree Criminal Abuse should be reversed . We disagree and hold that the
evidence was sufficient to support Appellant's conviction of First-Degree Criminal Abuse
of D . H .
Appellant asserts that the evidence was insufficient to convict him because "the
Commonwealth never adduced evidence of torture, cruel confinement, or cruel
punishment, by [Appellant] or [Higdon] ." We review the denial of Appellant's motion for
a directed verdict under the standard articulated by this Court in Commonwealth v.
_Id . ; Hampton v. Commonwealth , Ky., 666 S .W .2d 737, 740 (1984) ("If the
appellant required more specificity to defend, he should have pursued his requirements
by pretrial motion .") .
10
11
Baker v. Commonwealth , Ky., 973 S.W.2d 54, 55 (1998) ("A defendant must
renew his motion for a directed verdict, thus allowing the trial court the opportunity to
pass on the issue in light of all the evidence, in order to be preserved for our review .").
Benham. 12 Under the Benham standard, Appellant was entitled to a directed verdict
only if, considering the aggregate of the evidence, it would be clearly unreasonable for
the jury to find guilt . 13 We review the evidence, including reasonable inferences
therefrom, in the light most favorable to the Commonwealth . Applying this standard, we
find that the Commonwealth, as it maintains, produced sufficient evidence of torture or
cruel punishment by Appellant .
Criminal abuse "has three elements : a culpable state of mind, an act of abuse,
and one of the following consequences of that abuse : (i) serious physical injury ; (ii) risk
of serious physical injury; or (iii) torture, cruel confinement, or cruel punishment . "14 The
definition of "abuse" includes "the infliction of physical pain, injury, or mental injury[ .]" 15
Appellant does not contest that D.H . was abused but argues that "the Commonwealth
failed to ever offer any evidence as to who that abuser was or how the bruising was
inflicted much less whether the method of infliction was torture or cruel punishment or
cruel confinement ." Again, we disagree .
As shown by the exhibits and as detailed in the testimony of Dr. Burrows, D .H .
had numerous signs of physical abuse . Dr. Burrows testified :
[D .H.] had multiple injuries to multiple areas of the body.
When we examined the head, he had a scabbed abrasion up
near the hairline. He had two big bruises ; they were both
kind of brown, purple, green on both sides of his cheek. He
had abrasions on the inner aspect of the fleshy portion of the
cheek. He had a little laceration or tear of the skin right
where the left earlobe inserts into the skin of the face. He
Ky ., 816 S .W .2d 186 (1991) .
13 _Id . at 187.
See also Trowell v. Commonwealth , Ky., 550 S .W .2d 530 (1977);
Commonwealth v. Sawhill, Ky., 660 S .W.2d 3, 4 (1983) ; Yarnell v.
Commonwealth , Ky., 833 S .W .2d 834 (1992).
12
14
Robert G. Lawson and William H . Fortune, Kentucky Criminal Law § 9-6(b)
(Lexis 1998) .
15
KRS 508 .090(1) .
also had a pink bruise on his chin. The examination of the
chest, he had two bruises on the lower aspect of his
abdomen on both right and left sides, on his back he had a
series of circular contusions on the left shoulder area and a
linear yellow bruise in that area as well. He had multiple
bruises over the lower aspect of his back and his buttocks .
These were more kind of pink and brown . He also had
multiple abrasions which are due to like friction of the skin,
little scabbed abrasions that were in that area as well . He
did have a little rash that was over the back part of his upper
right thigh . Examination of his extremities, he had a couple
of bruises on his left upper extremity . He had multiple
circular bruises around the right elbow and a few other
bruises on his right upper extremity. He had some
nonspecific scabbed abrasions over the anterior, the front
part of his leg and those injuries would be consistent with
normal toddler stuff. He had another bruise on the back of
his right leg . Examination of the genitalia, disclosed he had
a large amount of purple, pink round contusions surrounding
the anus where we defecate or where we excrete feces . He
had a lot of discoloration around that. It was bruises . He
had some bruises in that area of the buttocks as well. He
had several small pink bruises on the scrotal sac. He had
what looked like a discontinuous circular abrasion around
the urethral meatus, the part on the penis where the urine
comes out . And circling that was a little abrasion that we
describe it as like a clock face . It pretty much encircled the
whole thing but there wasn't much abrasion from the 10 to 2
o'clock position . There were multiple pinpoint hemorrhages
at the tip of the penis that we call the glans penis . What we
call petechial hemorrhages . So he did have multiple
contusions in the genital region .
Because neither "torture" nor "cruel punishment" is defined by statute, we assign
them their ordinary meanings. 16 "Torture" is defined as "[t]he infliction of intense pain to
the body or mind to punish, to extract a confession or information, or to obtain sadistic
16
KRS 446 .080(4) ("All words and phrases shall be construed according to the
common and approved usage of language, but technical words and phrases, and such
others as may have acquired a peculiar and appropriate meaning in the law, shall be
construed according to such meaning ."); Cutrer v. Comonwealth , KY .A PP ., 697 S .W .2d
156 (1985); Heleringer v. Brown , Ky., 104 S.W .3d 397, 401 (2003) (quoting Gateway
Const . Co. v. Wallbaum , Ky. 356 S .W .2d 247, 249 (1962)) ("The words of the statute
are to be given their usual, ordinary, and everyday meaning .") .
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pleasure ."" In Cutrer v. Comonwealth , 18 a case where the meaning of the term "cruel
punishment" as used in the criminal abuse statutes was at issue, 19 the Court of Appeals
used the dictionary definition of "`cruel' as `disposed to inflict pain or suffering : devoid of
human feeling .-20 The Cutrer Court additionally noted that under the Eighth
Amendment of the United States Constitution as well as § 17 of the Kentucky
Constitution, "[c]ruel punishment is punishment which shocks the general conscience
and violates the principles of fundamental fairness[,]" 21 and that "[o]utside the criminal
arena, our cases define `cruel' as `heartless and unfeeling . -22 The Court of Appeals
found that the plain language of the abuse statutes was "sufficiently clear to apprise
ordinary sensible persons of the type of acts they sanction,"23 and therefore, it
"conclude[d] that those statutes are constitutionally sound ." 24 The Court then affirmed
criminal abuse convictions that were based on spankings that caused bruises on a
child's face, back, and kidney.
17
BLACK'S
LAw DICTIONARY 1498 (7t" ed . 1999) .
'$ Ky.App ., 697 S .W.2d 156 (1985) .
19
Although Cutrer involved convictions for Second-Degree Criminal Abuse and
for Third-Degree Criminal Abuse, the term "cruel punishment" is used in all three (3)
degrees of criminal abuse . See KRS 508.100- .120 .
2°
Cutrer , su ra note 18 at 158 (quoting Webster's Ninth New Collegiate
Dictionary 311 (1984)).
21
_Id . (citing Workman v. Commonwealth , Ky., 429 S .W .2d 374, 378 (1968) ("The
first approach is to determine whether in view of all of the circumstances the
punishment in question is of such character as to shock the general conscience and to
violate the principles of fundamental fairness.")).
22 _Id
. (citing Connelly v . American Bonding & Trust Co . , 113 Ky. 903, 69 S .W .
959 (1902)).
2s
24
Id .
Id .
The question before this Court in Stoker v. Commonwealth 25 was whether hitting
a child with a wire coat hanger qualified as "torture" or "cruel punishment" where the
abuse "did not result in medical treatment or leave scars or marks to verify that severe
beating had occurred ." 26 We concluded that "because the children testified to
circumstances proving the nature of the beatings to have been cruel and indiscriminate,
and far different in character from normal parental discipline[,] the jury could find that the
beatings qualified as torture or cruel punishment. ,27
In Canler v. Commonwealth , this Court cited Cutrer approvingly, incorporated
the meanings that Cutrer had assigned to "cruel punishment" and "cruel," and ruled that
"[i]t is . . . the jury's function to determine whether the amount of force used during a
spanking `shocks the conscience' or is `heartless and unfeeling f'],29 and to "determine
whether the amount of force used during a spanking constitutes cruel punishment . ,3 o
Consequently, this Court upheld the trial court's ruling that a severe spanking that does
not result in serious physical injury, or permanent scarring, may nevertheless constitute
cruel punishment as statutorily prohibited by KRS 508.100(1)(c) . In other words, the
Canler Court defined "cruel punishment" as punishment that shocks the conscience or
is heartless and unfeeling .
In the present case, D.H . had signs of physical abuse, literally, all over his body.
Indeed, the extent of the mistreatment of D.H. not only supports a finding that it "shocks
one's conscience" but also supports a finding that it was "heartless and unfeeling."
25
26
Ky ., 828 S.W.2d 619 (1992) .
Id . at 625 .
27
Id .
28 Ky ., 870 S .W .2d 219 (1994).
29 Id . a t 222 .
30
Id .
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Accordingly, based on the testimony of Dr. Burrows and the exhibits, we find that the
evidence clearly supported the jury's finding that the abuse resulted in torture or cruel
punishment to D.H .
Appellant argues that "no evidence was adduced as to when, how, or who
caused the abuse." As to "when," we would point out that Appellant wrote that D. H .
"was starting to come up with a bruise ever [sic] week or so it seemed like in the last
month or so" and that Dr. Burrows testified that the bruises were of multiple ages. We
would add that the scope of the abuse would also support an inference that it occurred
over a period of time. First-Degree Criminal Abuse is a felony charge and time, itself, is
not a material element of the offense. Accordingly, the failure to prove the specific date
of the offense is of no consequence .31 The issue of when an act occurred is often
raised in cases where the victim is a young child, and as one would expect, the
testimony is often confusing and uncertain . It is important in cases where multiple
counts of the same criminal offense are charged that the evidence be sufficient to
separately identify the various counts charged . 33 In this case, Appellant was only
charged with one (1) count of criminal abuse of D.H. ; therefore, there was no need to
show the specific days on which the abuse acts were committed on D .H . As shown by
the evidence, the abuse of D . H . was a continuing course of conduct, not just one single
act of abuse . As to "how" the abuse of D .H . occurred, we would only point out that the
means of the infliction of the abuse was not a necessary element of the offense that the
Commonwealth was required to prove in this case . As to "who," the evidence showed
31
1 Cooper, Kentucky Instructions to Juries (Criminal), § 1 .11 (4th ed . Anderson
32
33
Id .
Id .
1993) .
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that D.H . was in the care of both Appellant and Higdon during the time that he was
abused, and Deputy Steff testified that Higdon admitted to him that she knew that the
children were being abused and did not want to take them to the hospital for that
reason. A reasonable inference from this evidence was that Higdon was referring to
Appellant as the person who had abused the children . Accordingly we find that the
evidence was sufficient to support a finding by the jury that Appellant was the
perpetrator of the abuse on D.H .
Finally, we would note that the direct evidence that Appellant introduced the
drugs into D.H .'s system was by itself sufficient to support a finding of First-Degree
Criminal Abuse by Appellant . The evidence clearly supports a finding of the three
elements of First-Degree Criminal Abuse set forth supra : first, the introduction of the
drugs was intentional ; second, the introduction constituted an act of abuse in that it
caused "physical injury" to D .H ., and third, the consequence of the introduction was
"serious physical injury" to D .H. since it caused him to become comatose and was life
threatening . This evidence would also support a finding of "torture" or "cruel
punishment" because the introduction of drugs at a life-threatening level into the system
of a three (3) year old child qualifies as an act that both shocks the conscience and is
heartless and unfeeling.
Appellant argues, however, that the introduction of the drugs into D .H .'s system
was the basis of the assault charge and "could not logically serve as the basis for the
criminal abuse charge as well." Appellant does not cite any authority in support of this
argument, and we find none . In fact, "[w]hen a single course of conduct of a defendant
may establish the commission of more than one (1) offense, he may be prosecuted for
each such offense ." 34 Appellant does not raise double jeopardy as an issue ; regardless,
it would not bar his convictions in this case because each charge - First-Degree
Criminal Abuse and First-Degree Assault - requires proof of at least one fact which the
other one does not.35 For First-Degree Criminal Abuse, the Commonwealth was
required to prove that D.H . was twelve (12) years of age or less, which is not an
element of First-Degree Assault, and for First-Degree Assault, the Commonwealth was
required to show that Appellant's conduct created a grave risk of death, which is not a
requirement for First-Degree Criminal Abuse. Accordingly, the evidence that Appellant
introduced drugs into D.H .'s system was also sufficient to thwart Appellant's motion for
a directed verdict on the abuse charge.
B. First-Degree Assault Instructions .
A person commits First-Degree Assault when : "(a) [h]e intentionally causes
serious physical injury to another person by means of a deadly weapon or a dangerous
instrument ; or (b) [u]nder 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 ." 36 In the present
case, the trial court attempted to fashion a combination instruction 37 and instructed the
jury under both methods of committing First-Degree Assault :
34
35
KRS 505 .020.
Commonwealth v. Burge , Ky., 947 S .W.2d 805, 809 (996) ("Double jeopardy
does not occur when a person is charged with two crimes arising from the same course
of conduct, as long as each statute `requires proof of an additional fact which the other
does not."' (quoting from Blockburger v. United States , 284 U.S. 299, 304, 52 S .Ct. 180,
182, 76 L.Ed . 306, 309 (1932)).
36
KRS 508 .010.
37
On retrial, we suggest that the instruction for First-Degree Assault follow the
specimen instruction set forth in 1 Cooper, Kentucky Instructions to Juries (Criminal) §
3.36 (4th ed. Anderson 1993) .
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You will find the Defendant 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 . That in this county on or about September 22, 1999, and
before the finding of the Indictment herein, he, acting alone
or in complicity with another, intentionally caused a serious
physical injury to [D.H ./A.H.] by introducing into his body
Tricyclic anti-depressant and/or benzodiazepine ;
OR
B . The Defendant wantonly engaged in conduct, which
created a grave risk of death to another and thereby caused
serious physical injury [to] [D .H ./A.H .] under circumstances
manifesting extreme indifference to the value of human life.
Appellant first complains that the evidence did not support the intentional assault
theory, and therefore, the requirement of unanimity was violated because the jury's
verdict did not indicate under which theory it convicted Appellant .39 However, we find
that the evidence supported a finding of intentional assault, and thus unanimity is not an
issue.
,,A person acts intentionally with respect to a result or to conduct described by a
statute defining an offense when his conscious objective is to cause that result or to
engage in that conduct . ,4° Evidence of actual intent, however, is not required ; the jury
may infer intent from the circumstances of the act . 41 A.H .'s testimony as to the manner
in which Appellant administered the drugs and the serious consequences associated
38 The First-Degree Assault instructions read exactly the same for both counts
except for the names of the victims.
39 On retrial, if a combination instruction is used, we would suggest that a verdict
form be utilized that requires the jury to state under what theory they find guilt. See
specimen instructions 2 .08D and 2 .09D of 1 Cooper, Kentucky Instructions to Juries
(Criminal) (4th ed . Anderson 1993) and Commonwealth v. Hager, Ky., 41 S .W .3d 828
(2001) (both majority and concurring opinions set forth specimen verdict forms) .
40
41
KRS 501 .020(1).
Dishman v. Commonwealth , Ky., 906 S .W .2d 335, 341 (1995) ("A jury has
latitude to infer intent from the surrounding facts and circumstances .") .
- 1 6-
with the drugs was sufficient to support a reasonable inference that Appellant intended
to harm D.H . and A.H . through the administration of high dosages of medication .
Next, Appellant argues that the instructions were erroneous because the
instructions "assume[d] as a matter of law that the drugs were dangerous instruments,"
and that was a question for the jury. Without addressing the merits of this argument, we
would simply note that this issue was not preserved for appeal . Appellant did not offer
an instruction or otherwise make known his objection to the intentional First-Degree
Assault instruction .42 His submission of a Second-Degree Assault instruction defining
"dangerous instrument" and allowing the jury to make a determination under that
instruction whether the drugs were dangerous instruments was not sufficient to fairly
and adequately present to the trial court the objection to the First-Degree Assault
instruction that he now asserts. Therefore, Appellant did not preserve his claim of error
regarding the First-Degree Assault instruction. Consequently, he is precluded from
assigning as error the trial court's failure to define "dangerous instrument" and allowing
the jury to make that determination under the First-Degree Assault instruction .
C. Failure to Instruct on Second-Degree Assault.
Finally, as to the instructions, Appellant argues that the trial court erred in failing
to give a wanton Second-Degree Assault instruction as a lesser-included offense of
First-Degree Assault. We agree.
42
RCr 9.54(2) ("No party may assign as error the giving or the failure to give an
instruction unless the party's position has been fairly and adequately presented to the
trial judge by an offered instruction or by motion, or unless the party makes objection
before the court instructs the jury, stating specifically the matter to which the party
objects and the ground or grounds of the objection .").
- 1 7-
"All instructions must be supported by the testimony and evidence presented at
trial . "43 Thus, "[a]n instruction on a lesser-included offense is appropriate if and only if
on the given evidence a reasonable juror could entertain reasonable doubt of the
defendant's guilt on the greater charge, but believe beyond a reasonable doubt that the
defendant is guilty of the lesser offense . "44
The Second-Degree Assault statute, KRS 508 .020, reads in relevant part as
follows :
(1) A person is guilty of assault in the second degree when :
(c) He wantonly causes serious physical injury to another
person by means of a deadly weapon or a dangerous
instrument .
Thus, "[n]ormally, a [wanton First-Degree Assault] instruction is accompanied by an
instruction on [wanton] Second-Degree Assault as a lesser included offense, if (1) a
dangerous instrument was used; and either (2) there is a reasonable doubt whether the
degree of the defendant's wantonness reached the level described in [the wanton FirstDegree Assault] instruction, or only that contained in the definition of `wantonly' . . . .» 45
Here, under the evidence presented, the jury clearly could have entertained a doubt as
to whether Appellant's wantonness reached the level necessary for a conviction of
43
Parker v. Commonwealth , Ky., 952 S .W.2d 209, 211 (1997) ; 1 Cooper,
Kentucky Instructions to Juries (Criminal) § 1 .0513 (4th ed . Anderson 1993) ("[T]he jury
must be instructed on all lesser included offenses which are supported by the
evidence." Id .).
44
Skinner v. Commonwealth , Ky., 864 S .W.2d 290, 298 (1993) ; Clifford v.
Commonwealth , Ky., 7 S .W .3d 371 (1999) ("Regardless, an instruction on a lesser
included offense is required only if, considering the totality of the evidence, the jury
could have a reasonable doubt as to the defendant's guilt of the greater offense, and yet
believe beyond a reasonable doubt that he is guilty of the lesser offense ." _Id . at
376-377) (emphasis added) .
45 1
Cooper, Kentucky Instructions to Juries (Criminal) § 3.34, comment (4th ed .
Anderson 1993) .
-1 8-
wanton First-Degree Assault but believed beyond a reasonable doubt that he was guilty
of wanton Second-Degree Assault .
The Commonwealth counters that Appellant failed to preserve this claim of error.
We disagree . Appellant tendered to the trial court a Second-Degree Assault
instruction, and at the instruction conference, the trial court acknowledged any
objection by Appellant to its instructions "as to any differences that may exist ."
Accordingly, we reverse Appellant's First-Degree Assault convictions and
remand the charges to the trial court for a new trial.
D . Outburst of Codefendant.
As the court was reconvening after a recess, Higdon, who was standing in front
of the jury box and referring to Appellant, loudly stated, "I can't stand to be near him ."
The trial court overruled Appellant's motion for a mistrial . Appellant argues that he was
prejudiced because Higdon was in effect able to get a statement in front of the jury
when she had elected not to testify and that he was, therefore, unable to cross-examine
her about it. The trial court overruled the motion, finding no manifest necessity . We
agree . This was a brief isolated remark and did not contain any factual information .
Appellant declined the trial court's offer of a curative admonition or a separate
instruction regarding Higdon's remark . Accordingly, we agree with the trial court that
Higdon's remark, albeit clearly improper, did not create manifest necessity for a
mistrial .
E . Joinder of trials .
46
On the face of Appellant's tendered instructions, it is hand-written "tendered 523-01 ed rejected ."
47
Caudill v. Commonwealth , Ky., - S.W.3d
Ky., 68 S .W .3d 375 (2002).
-1 9-
(2003); Bray v. Commonwealth ,
Appellant maintains that he was prejudiced by his joint trial with Higdon . He
bases this claim on several arguments. First, he argues that he and Higdon had
antagonistic defenses because they were casting blame on each other for the abuse
and drugging of the children. Although this is a factor that the trial court may properly
consider in determining whether to order separate or joint trials of defendants otherwise
properly joined, this fact, by itself, does not mandate separate trials . In fact, antagonistic
defenses might be a reason for joint trials .48 Accordingly, we find no undue prejudice to
Appellant from his joint trial with Higdon solely because of their antagonistic defenses .
Next, Appellant asserts that after Higdon's outburst, the trial court should have
stopped the joint trial and, at that point, severed his trial from the trial of Higdon . Again,
we disagree . As we have previously noted, Higdon's outburst was brief in duration, a
mere seven (7) words, contained no factual information, and in essence, was without
any significant effect in Appellant's trial . For that reason, we hold that Higdon's outburst
did not require a severance of Appellant's trial at that point.
Lastly, Appellant claims that the trial court's refusal to order separate trials
allowed Higdon's lawyer to act as a "separate prosecutor" and that a separate trial
would have avoided this prejudicial situation. As an example of prejudice, Appellant
complains that Higdon's lawyer questioned Deputy Sheriff Poteet in detail about
Appellant's arrest and subsequent escapes when those matters were irrelevant to the
charges against Higdon . He claims that the sole purpose was to make him look bad to
the jury . We would point out that if the details of Appellant's arrest and escapes were
irrelevant to Higdon's defense, or if they were cumulative of details previously elicited by
48
Ware v. Commonwealth , Ky., 537 S .W.2d 174 (1976) .
-20-
the Commonwealth, Appellant should have timely objected to such evidence .49 Having
failed to object, he waived any objection to the relevancy or redundancy of the evidence
elicited by Higdon . 5° We would note, however, that evidence of escape is generally
probative of guilt, 51 and in this case, Higdon was attempting to establish Appellant's guilt
as her defense. She had this right, and it necessarily included the right to introduce
relevant evidence of Appellant's guilt of the abuse and assault of the children. 52 For
these reasons, we find that the so-called "second prosecution" by Higdon did not justify
the granting of a severance .
F . Competency of A.H.
Appellant claims that A.H . was not competent to testify . The Commonwealth,
however, argues that this claimed error was not preserved for appeal . We agree .
Although it is correct that Appellant asked the trial court to determine whether A .H. was
competent to testify, no objection was made to A.H . testifying after the trial court held a
hearing and found A .H. competent to testify . Appellant's motion was not a motion to
preclude A .H. from testifying because of a lack of competency, but rather, it was, as
previously stated, a motion solely for the trial court to make a determination as to A.H .'s
competency to testify . If Appellant was dissatisfied with the trial court's ruling, then the
burden was upon Appellant to voice an objection to the trial court's finding or A.H.'s
testimony . Appellant's failure to do so forfeited his right to predicate error upon the
49 KRE 402 ; KRE 403.
50 KRE 103(a)(1) ; Bush v. Commonwealth , Ky., 839 S.W.2d 550, 558 (1992)
("The defendant cannot fail to object at trial and then raise the issue on appeal.").
51
Bunton v. Commonwealth , Ky., 464 S.W .2d 810 (1971) ; Napier v.
Commonwealth , Ky., 306 Ky. 75, 80, 206 S.W.2d 53, 55 (1947) ("Flight and escape
after being charged with a crime is evidence of the defendant's guilt.").
52
Eldred v. Commonwealth , Ky., 906 S .W.2d 694, 705 (1994) .
-21-
ruling of the trial court allowing A.H. to testify . Nevertheless, we will briefly address the
merits of this argument.
KRE 601 governs the competency of a witness to testify, and it provides :
(a) General. Every person is competent to be a
witness except as otherwise provided in these rules or by
statute.
(b) Minimal qualifications . A person is disqualified to
testify as a witness if the trial court determines that he :
(1) Lacked the capacity to perceive accurately the
matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be
understood, either directly or through an interpreter ; or
(4) Lacks the capacity to understand the obligation of
a witness to tell the truth .
"The trial court is in the unique position to observe witnesses and to determine
their competency[ ]";53 therefore, "[t]he trial court has the sound discretion to determine
whether a witness is competent to testify . ,54 There is no minimum age for testimonial
capacity, and accordingly, "[a]ge is not determinative of competency[ .] "55 Here, A.H .
was six (6) years of age at the time of trial and four (4) years of age when the alleged
crimes occurred . The trial court conducted an evidentiary hearing, examining A.H ., and
although the trial court indicated A.H .'s testimonial competency was marginal, the trial
court found that A.H . met the minimal standard to testify . From a review of the record,
we find that the record supports the trial court's findings and that the trial court did not
abuse its discretion in finding A.H . competent to testify .
G . PFO hearing.
53
54
Pendleton v. Commonwealth , Ky., 83 S .W.3d 522, 525 (2002).
Id .
55
Id .
-2 2-
Appellant complains that the trial court committed error when it allowed the jury
to determine his PFO status prior to sentencing him on the underlying offenses .
Appellant is right but this procedural error did not prejudice him .
We set forth in Commonwealth v. Reneer56 a suggested procedure for trial courts
to follow in a combined PFO/Truth-in-Sentencing hearing :
If the accused is also charged as a persistent felony
offender, the penalty phase and a persistent felony offender
phase can be combined because the same evidence that is
pertinent toward fixing the penalty is also pertinent for
consideration in the enhancement of sentence, and the jury
in the combined bifurcated hearing could be instructed to (1)
fix a penalty on the basic charge in the indictment ; (2)
determine then whether the defendant is guilty as a
persistent felony offender, and if so; (3~ fix the enhanced
penalty as a persistent felony offender .
Obviously, the trial court deviated from the suggested procedure ; however, Appellant
was not prejudiced by this error. Accordingly, we hold that the error was harmless,
and Appellant is not entitled to a new sentencing hearing as a result thereof.59
IV. CONCLUSION
We affirm Appellant's convictions for First-Degree Criminal Abuse, Third-Degree
Criminal Mischief, and two counts of Second-Degree Escape. We also affirm the
finding that he was a Second-Degree Persistent Felony Offender . We reverse and
remand for retrial his convictions for the two (2) counts of First-Degree Assault .
Cooper, Graves, Johnstone, Keller and Stumbo, JJ ., concur. Lambert, C.J . and
Wintersheimer, J ., dissent without separate opinion .
56
Ky ., 734 S .W .2d 794 (1987) .
57 Id . at 798.
58 Montgomery v. Commonwealth , Ky., 819 S.W.2d 713, 721 (1991) ("It is as
likely that the failure of the jury to set a sentence on the underlying offense had a
mitigating effect, as that it had a punitive effect .").
59 Id . ; RCr 9.24 .
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COUNSEL FOR APPELLANT:
Emily Holt
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
A. B . Chandler, III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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