NICK RATLIFF V. COMMONWEALTH OF KENTUCKY
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2004-SC-0452-MR
NICK RATLIFF
V
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE DANIEL SPARKS, JUDGE
02-CR-20-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING . IN-PART VACATING IN PART
AND REMANDING
Appellant, Nick Ratliff, was convicted by a Lawrence Circuit Court jury of
intentional murder, KRS 507.020(1), for which he was sentenced to fifty years in prison,
and seven counts of first-degree criminal abuse, KRS 508.100(1)(c) (torture or cruel
punishment), for which he was sentenced to ten years in prison on each count.
On January 27, 2002, Tammy Kirk, Appellant's domestic companion, presented
L.M., her twenty-month-old daughter by another relationship, to Three Rivers Medical
Center ("Three Rivers") in Lawrence County, Kentucky. An x-ray revealed L.M. had a
fractured left humerus for which no cause was stated except that she might have caught
her arm in the slats of her crib. L.M. was discharged on February 1, 2002, to the care of
her mother, Kirk. On February 4, 2002, L.M. was again presented to Three
Rivers for treatment of crusty lesions around her mouth, belly, and on one wrist, which
was diagnosed as impetigo . Treating officials also noted bruising around her lower jaw,
which Kirk attributed to the sling L.M. wore for the broken arm.
Four days later, on the morning of February 8, 2002, L.M. was presented to the
hospital, where, upon examination, she was pronounced dead. She was reportedly
found dead in her bed at Appellant's apartment by Appellant while Kirk was asleep.
During the failed resuscitation attempt at Three Rivers and the subsequent postmortem
examination of L.M.'s body, a number of injuries were discovered which formed the
bases for Appellant's convictions of murder and criminal abuse.
Appellant appeals his convictions and sentences to this court as a matter of right,
Ky. Const. ยง 110(2)(b), asserting the following claims of error by the trial court:
(1) denial of his motions to sever the count of murder from the counts of criminal abuse
and to sever his prosecution from that of his codefendant, Kirk; (2) denial of his motion
to strike two venirepersons for cause; (3) denial of his motions for directed verdicts of
acquittal with respect to all counts; (4) denial of his motion to exclude opinion testimony
of Dr. Betty Spivack; (5) admission of gruesome photographs; (6) denial of his motion to
merge all seven counts of criminal abuse into one count ; (7) refusal to instruct the jury
on lesser degrees of homicide and criminal abuse; (8) refusal to inquire into allegation
of sleeping juror; and (9) errors in the amended final judgment. We affirm Appellant's
convictions but vacate the judgment and remand this case to the Lawrence Circuit Court
with directions to enter a new final judgment.
!.SEVERANCE .
Appellant asserts error in the denial of his RCr 9.16 motion to sever (1) the
murder count from the criminal abuse counts against him ; and (2) his own criminal
prosecution from the prosecution of Kirk. RCr 9.16 provides in pertinent part:
If it appears that a defendant . . . will be prejudiced by a joinder of offenses
or of defendants in an indictment, . . . the court shall order separate trials
of counts, grant separate trials of defendants or provide whatever other
relief justice requires .
Under RCr 9 .16, "a defendant must prove that joinder would be so prejudicial as to be
'unfair or 'unnecessarily or unreasonably hurtful."' Commonwealth v. Rogers, 698
S .W.2d 839, 840 (Ky. 1985) ; see also Humphrey v. Commonwealth , 836 S .W .2d 865,
868 (Ky. 1992) ; Ware v. Commonwealth , 537 S.W.2d 174,176-77 (Ky. 1976). A trial
judge has broad discretion in ruling on an RCr 9 .16 motion, and that determination will
not be overturned on appeal unless an abuse of discretion is shown. Taylor v.
Commonwealth , 995 S.W.2d 355, 360 (Ky. 1999) ; Foster v. Commonwealth , 827
S.W.2d 670, 679-80 (Ky. 1991). We review each claim separately.
A. Severance of Charges .
Appellant argues that failure to sever the seven counts of first-degree criminal
abuse from the murder count was an abuse of discretion because a finding of guilt as to
the criminal abuse charges would unfairly prejudice the jury against him as to the
murder charge.
A significant factor in identifying such prejudice is the extent to which
evidence of one offense would be admissible in a trial of the other offense .
In the case at bar, the evidence relating to the abuse charge would have
been admissible in a trial on the murder charge, not, as Appellant
mischaracterizes it, as proof of criminal disposition, but, rather, as proof of
a similar course of conduct or common scheme or plan.
Commonwealth v. Collins, 933 5.W.2d 811, 816 (Ky. 1996) (citations and quotation
omitted) ; see also Rearick v. Commonwealth , 858 S .W.2d 185, 187 (Ky. 1993) .
Furthermore, "the joinder of offenses . . . is proper where the crimes are closely related
in character, circumstances, and time ." Seav v. Commonwealth, 609 S.W .2d 128, 13031 (Ky. 1980) (citations omitted) ; see also Cannon v. Commonwealth, 777 S.W .2d 591,
597 (Ky. 1989). In the case sub judice , the injuries that substantiated the acts of abuse
and murder were inflicted within a span of two weeks. They are similar in character and
circumstance in that each occurred in either Kirk's or Appellant's apartment, and each
occurred when there were no other witnesses present . Further, evidence of other
assaults perpetrated by a defendant against the same victim is generally admissible to
prove intent and motive with respect to the subsequent assault. Cf. Price v.
Commonwealth , 31 S.W.3d 885, 888 & n.4 (Ky. 2000) (prior sexual assaults perpetrated
against same victim admissible to prove intent, motive, and plan to commit subsequent
sexual assault) .
Appellant cites Romans v. Commonwealth , 547 S .W.2d 128, 131 (Ky. 1977), for
the proposition that different criminal charges should be severed when a finding of guilt
as to one charge would cause the jury to be "less inclined" to believe the defendant was
innocent of the other charge . However, Romans involved the joinder against one
criminal defendant of two charges of rape involving two different victims, where the
defense to one charge was consent of the victim, whom the defendant claimed was a
prostitute (and the victim had been previously convicted of soliciting prostitution),
whereas the defense to the other charge was alibi, i .e . , that he was not the perpetrator,
and there was undisputed evidence that the victim had been forcibly raped by someone .
Id . at 130-31 . The coalescence of the prostitution defense, the first victim's previous
conviction, and the undisputed forcible rape perpetrated against the second victim
easily distinguishes the facts in Romans from the case sub iudice. In this case both the
victim and the defense (alibi) are identical for all joined counts.'
B. Severance of Parties .
Appellant argues that failing to sever his trial from that of Kirk was error because
Kirk blamed him as the principal actor in the abuse and murder of L.M . and, for that
reason, the denial of his RCr 9 .16 motion was an abuse of discretion.
Although antagonism between the defenses of two codefendants is a relevant
consideration in deciding whether to sever charges, "[t]he movant must show that the
antagonism between the codefendants will mislead or confuse the jury." Foster v .
Commonwealth , 827 S.W.2d 670, 679-80 (Ky. 1991) ; see also United States v. Horton ,
847 F.2d 313, 317 (6th Cir. 1988).
[N]either antagonistic defenses nor the fact that the evidence for or
against one defendant incriminates the other amounts, by itself, to unfair
prejudice . . . . That different defendants alleged to have been involved in
the same transaction have conflicting versions of what took place, or the
extent to which they participated in it, vel non, is a reason for rather than
against a joint trial . If one is lying, it is easier for the truth to be determined
if all are required to be tried together.
Ware, 537 S.W.2d at 177.
Furthermore, Appellant's defense was not clearly antagonistic to Kirk's ; they were
actually consistent in that both affirmed throughout the trial that neither had ever
harmed L.M. in any way and that neither had ever seen the other do so . The fact that
an inference arises from the facts tending to inculpate Appellant (and Kirk) does not
' Furthermore, in Romans the defendant's conviction was reversed on other grounds,
thus the language regarding the propriety of a severance in that case is dictum .
Romans, 547 S .W.2d at 131 .
Both Appellant and Kirk testified during their joint trial, so there was no confrontation
problem as in Bruton v. United States , 391 U .S . 123, 88 S.Ct. 1620, 20 L.Ed .2d 476
(1968).
make their defenses antagonistic. See -generally Davis v. Commonwealth , 967 S.W.2d
574, 581 (Ky. 1998) (holding joinder of defendants proper where two codefendants were
indicted for criminal abuse and one was indicted for homicide for death of child).
11. JURY CHALLENGES.
Appellant asserts that the trial court committed reversible error by refusing to
strike three jurors for cause. RCr 9.36(1) provides that a motion to strike for cause
should be granted "[w]hen there is reasonable ground to believe that a prospective juror
cannot render a fair and impartial verdict on the evidence ." We review a trial court's
ruling on such a motion for an abuse of discretion . Adkins v. Commonwealth , 96
S.W.3d 779, 796 (Ky. 2003); Pendleton v. Commonwealth , 83 S.W.3d 522, 527 (Ky.
2002).
The right to an impartial jury is a fundamental constitutional right, a violation of
which may never be harmless. Paenitz v. Commonwealth, 820 S.W.2d 480, 481-82
(Ky. 1991). A potential juror should be excused for cause only when the juror cannot
conform his/her views to the requirements of law and render a fair and impartial verdict.
Mabe v. Commonwealth , 884 S.W.2d 668, 670-71 (Ky. 1994). "It is the probability of
bias or prejudice that is determinative in ruling on a challenge for cause." Pennington v.
Commonwealth , 316 S.W.2d 221, 224 (Ky. 1958) . The inquiry is whether the conditions
behind a juror's familiarity with a party, victim, attorney, or witness are such that "their
connections would probably subconsciously affect their decision of the case adversely
to the defendants ." Montgomery v. Commonwealth , 819 S.W.2d 713, 718 (Ky. 1991)
(quotations omitted). However, "[t]his definition does not encompass a mere social
acquaintanceship in the absence of other indicia of a relationship so close as to indicate
the probability of partiality ." Sholler v. Commonwealth , 969 S .W.2d 706, 709 (Ky.
1998) .
During voir dire, one juror stated that Appellant's co-defendant, Kirk, had been
friends with her daughter when they were younger, but that her daughter and Kirk had
not had any contact for at least three years . Another juror had read about the case in
the newspaper and also had taken custody of and raised a child who had been removed
from an abusive household . However, the child's previous abusive relationship involved
a failure to provide necessary care, e.g_, malnutrition, rather than physical or sexual
abuse. A third juror had heard about L.M.'s death at some point but could recall neither
what was said nor where he heard it. He stated that, though the fact that the victim was
an infant would "impact" him "some," he felt he could be impartial and require the
Commonwealth to meet its burden of proof.
Thus, all of the jurors stated that they could be impartial and consider all of the
evidence. None disclosed relationships or circumstances tantamount to those from
which this Court has presumed bias. E.g ., Fugate v. Commonwealth , 993 S.W.2d 931,
938 (Ky. 1999) (juror had ongoing professional relationship with counsel) ; Montgomery ,
819 S .W.2d at 717 (in prosecution of prison escapee where juror had previously been
held hostage by different escapees) ; Ward v. Commonwealth, 695 S.W.2d 404, 407
(Ky. 1985) (juror was uncle of Commonwealth's Attorney, though not presuming bias
with ex-brother-in-law or'distant cousin of same); Haves v. Commonwealth , 458 S .W .2d
3, 5 (Ky. 1970) (juror was brother of sheriff who would testify at trial) ; cu. Altman v. Allen ,
850 S .W.2d 44, 45 (Ky. 1992) (bias not presumed in medical malpractice action where
juror was former patient of defendant-doctor). The stated relationships or
circumstances with respect to each disputed juror in this case did not so clearly imply
bias that the ;efusal to excuse them for cause could be characterized as an abuse of
discretion .
III. SUFFICIENCY OF THE EVIDENCE.
Appellant asserts that there was insufficient evidence to establish beyond a
reasonable doubt that he committed the murder and seven counts of criminal abuse,
thus he was entitled to directed verdicts of acquittal on all charges.
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. . . .
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 .
Commonwealth v. Benham, 816 S .W.Zd 186, 187 (Ky. 1991); see also Turner v.
Commonwealth , 153 S.W.3d 823, 826-27 (Ky. 2005). The test is the same when the
only evidence of guilt is circumstantial . Bussell v. Commonwealth , 882 S.W.2d 111,
114 (Ky. 1994) ; Nug~nt v. Commonwealth , 639 S.W.2d 761, 783-64 (Ky. 1982).
Although circumstantial evidence "must do more than point the finger of suspicion,"
Davis v. Commonwealth , 795 S.W .2d 942, 945 (Ky. 1990), the Commonwealth need not
"rule out every hypothesis except guilt beyond a reasonable doubt." Jackson v.
Vir inia, 443 U.S. 307, 326, 99 S .Ct. 2781, 2792-93, 61 L.Ed .2d 560 (1979).
Dr. Cristin Rolf, a forensic pathologist, and Dr. Betty Spivack, a forensic
pediatrician, both employed by the State Medical Examiner, testified to the cause of
L.M.'s death and her other injuries. Their testimonies are summarized in the following
paragraphs :
The cause of death was forcible asphyxiation, evidenced by the following injuries
to L .M . : (1) the frenulum, the flap of tissue connecting the upper lip to the gum, was
completely severed-a perimortem3 injury caused by a substantial sideways shearing
force applied to the lip; (2) bruises, lesions, and raw skin were visible around L.M.'s
mouth, suggesting that pressure was applied to her lips ; (3) lesions were visible on the
sides of L.M .'s nose, which Dr. Rolf testified was an odd place for bruising on a toddler
because the area was non-protruding and thus generally unlikely to become bruised
from an accident ; and (4) petechial hemorrhages had occurred inside the eyes . Dr.
Spivack opined that L.M. was asphyxiated by an adult holding her lips and nose closed
at the same time, effectively cutting off her airways to the point of suffocation . The
bruising indicated where pressure was applied to L.M.'s face ; the petechial
hemorrhages evidenced the asphyxiation ; and the severed frenulum evidenced the
continued application of pressure while L .M. was struggling, probably by thrashing her
head laterally in an attempt to escape the grip holding her lips together .
Dr. Rolf agreed with the diagnosis by Three Rivers (on L.M.'s February 4, 2002,
visit) that impetigo caused the yellowish, crusting lesions around the mouth and on
other parts of the body. However, Dr. Rolf also testified that such an infection is often
"secondary'--arising from the heightened susceptibility to infection attendant to a preexisting break in the skin . Furthermore, some of the injuries on the mouth were
sustained close to the time of death, whereas others occurred at an earlier time .
The medical testimony described the following additional injuries that were
unrelated to the cause of death and, in the opinion of both experts, were intentionally
inflicted . There were seven identical arch-shaped, scabbed burns on the abdomen, and
3 A perimortem injury is one that occurs very near the time of death .
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another identical burn on the wrist, all caused by the same object being heated and
forced against the skin . These were very typical of burns caused by heating a
disposable BIC brand cigarette lighter and pressing the metal top against the skin.
Several such cigarette lighters were recovered from a search of Appellant's residence .
There were numerous bruises on the abdomen (Dr. Rolf testified to at least ten
separate bruises of the abdomen ; Dr. Spivack testified to "multiple" bruises) and
additional extensive bruising and tearing of the mesenteric membrane inside the
abdomen . There was also a hemorrhage within the bowel. These abdominal bruises,
especially the interior bruising and the hemorrhage, were caused by severe blunt force
trauma and were most likely sustained at different times within the four days preceding
death. There were multiple contusions in the scalp on the top of the head, especially in
the deep tissue of the scalp. These bruises were most probably inflicted because,
unlike bruising on other parts of the body, children do not often, upon falling, land
directly on the top of the head ; and, if they do, usually only one large bruise appears
rather than several smaller bruises (caused by repeated impacts) . The bruises on
L. M .'s head were likely caused by blunt force from a smaller object, roughly the size of
an adult knuckle. In addition to these injuries, there were various bruises on the
extremities, which could have been inflicted or accidental, and an abrasion on the back
of the neck.
The fracture to L.M.'s left humerus5 was transverse (meaning clean and straightacross) and was caused by significant force. This injury was inconsistent with one
resulting from a simple fall because of the force required and because falls most often
4 Dr. Spivack testified that the burns were almost identical to burns caused by BIC
lighters to other victims, as admitted by perpetrators in other abuse cases.
5 The humerus is the long bone in the arm between the shoulder and the elbow.
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result in broken boner in the wrist or lower arm-incurred while attempting to break the
fall. Dr. Spivack testified that, based on the appearance of the fractured humerus, it
was caused by "bending forces"--pressure put on both sides of the bone. She
explained that this kind of break rarely occurs by accident and, moreover, the
information provided to Three Rivers by Kirk (that the bed had slats, L.M. was fine when
she was put to bed, and her arm was broken when they found her the next day) was an
unreasonable explanation . This injury occurred ten-to-fourteen days prior to death and
would have been very painful when sustained . All of these injuries were sustained
within a month of L.M .'s death . Some of the bruising and lesions around the mouth and
nose, as well as the severed frenulum and petechial hemorrhages in the eye, were
sustained at the time of death . Although L.M. was in the exclusive custody of Kirk and
Appellant in the hours leading up to her death, neither claimed to have any knowledge
of how the child sustained any of these injuries or what might have caused her death .
Both claim she went to sleep perfectly healthy the night before she was found dead.
Thus, the Commonwealth presented *evidence that L.M., a twenty-month-old
child, died from forcible asphyxiation, that this was an inflicted (rather than accidental)
death, that L.M. died in the early morning hours of February 8, 2002, and that Appellant
and Kirk were alone with L .M. from the preceding evening until she was presented to
the hospital . Furthermore, there was additional evidence of seven other types of
unexplained injuries to L.M . that were "inflicted" by someone; that Appellant had the
opportunity to commit these acts of abuse; and that a BIC cigarette lighter had probably
been used to inflict the burns and Appellant owned several such lighters . Appellant and
Kirk agreed in their testimony that Appellant was awake for some period during the
critical hours before L.M.'s death, whereas Kirk was asleep; and that Appellant was the
first of the two to "discover" the body. Additionally, there was no evidence that anyone
other than Appellant or Kirk had the opportunity to asphyxiate L .M ., and neither
Appellant nor Kirk could present any explanation as to how L.M. sustained any of her
injuries. The numerous injuries sustained by L .M .---all inflicted rather than accidental-reflect an animus against the child indicative of a motive to harm her, which raises to the
level of improbable Appellant's and Kirk's claimed ignorance as to the cause of any of
L.M.'s numerous injuries.
Appellant testified in his own defense at trial . Witness credibility is distinctly
within the province of the jury. Commonwealth v. Shuttles , 80 S.W.3d 424, 426 (Ky.
2002).
As the trier of fact, the jury was entitled to disbelieve [defendant]'s
uncorroborated and confused testimony . . . and to take into account [his]
demeanor when testifying, which neither the Court of Appeals nor we may
review. And if the jury did disbelieve rdefendantl, it was further entitled to
consider whatever it concluded to be perjured testimony as affirmative
evidence of quilt . . . .
Wright v. West, 505 U .S. 277, 296, 112 S .Ct. 2482, 2492, 120 L.Ed .2d 225 (1992)
(emphasis added) (citations omitted) . The jury obviously disbelieved Appellant .
The circumstantial evidence in this case was adequate to survive Appellant's
motion for directed verdicts of acquittal . Pilon v. Commonwealth , 544 S .W.2d 228, 230
(Ky. 1976) ("[Defendant] and the mother denied that he abused the child in any way.
However, the fact remains that the child was beaten to death . In view of the evidence
and the inferences that may justifiably be drawn therefrom, a reasonable mind might
fairly find [defendant] guilty beyond a reasonable doubt ."); see also Turner, 153 S .W .3d
at 826-27 ; Davis , 795 S.W.2d at 945-47.
IV. OPINION TESTIMONY .
Appellant asserts that the trial court erred in allowing Dr. Spivack to opine, over
Appellant's objection, that the burn injuries on L.M.'s abdomen and wrist were probably
inflicted by heating a BIC cigarette lighter and pressing it against L.M.'s skin . Dr.
Spivack testified that these were similar to burns she had seen on other child abuse
victims that had been caused in that manner. Although she could not say which
particular lighter caused the burns, she explained that BIC lighters have a particular .
shape, and suspects in other child abuse cases had confessed to using BIC lighters in
this manner to produce similar burns on child victims. Although Dr. Spivack could not
identify animal testing or published texts on the subject of the shapes of burns caused
to children by the application of hot cigarette lighters, she was familiar with published
case reports of burn injuries caused to children in this manner.
Kentucky Rule of Evidence (KRE) 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education , may testify thereto in the form of an opinion or otherwise .
(Emphasis added .) We review a trial court's ruling under KRE 702 for abuse of
discretion . Good ey ar Tire & Rubber Co. v. Thompson , 11 S.W.3d 575, 577-78 (Ky.
2000). Dr. Spivack is a forensic pediatrician employed by the Medical Examiner's office
who has worked in the field for roughly seventeen years. She has focused on severe
and fatal child abuse, published and lectured internationally, and has published and
lectured on skin injuries and inflicted burns . Her qualifications are not in dispute .
Rather, Appellant argues that her opinion testimony was inadmissible because none of
the Daubert factors were satisfied, i .e. , whether the theory can be/has been tested,
whether it has been subjected to peer review, whether there is a potential or known
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error rate for such tests, and whether it enjoys acceptance within the relevant scientific
community . Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-95,113 S.Ct. 2786,
2796-98,125 L .Ed .2d 469 (1993).
Mhe inquiry into reliability and relevance is a flexible one. The factors
enumerated in Daubert and Mitchell tv. Commonwealth , 908 S .W.2d 100
(Ky. 1995)] are neither exhaustive nor exclusive . A trial court may apply
any or all of these factors when determining the admissibility of any expert
testimony .
Thompson , 11 S .W.3d at 578. The United States Supreme Court has clarified the
import of the Daubert factors, stating :
The factors identified in Daubert may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert's particular
expertise, and the subject of his testimony . The conclusion, in our view, is
that we can neither rule out, nor rule in, for all cases and for all time the
applicability of the factors mentioned in Daubert , nor can we now do so for
subsets of cases categorized by category of expert or by kind of evidence.
Kumho Tire Co. v. Carmichael, 526 U .S . 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d
238 (1999) (quotations and citation omitted) .
Although Dr. Spivack did not base her opinion on scientific testing the results of
which had been subject to peer review, she explained that her opinion was supported
by published case reports documenting burns inflicted by cigarette lighters and upon her
own experience ; she had seen the same type of burns "in actual patients and in at least
two cases there was ultimately an admission that a cigarette lighter was used." The
cause of an injury may be within the ambit of an expert witness's specialized knowledge
and is properly admissible subject to the trial judge's KRE 702 determination. Stringer
v. Commonwealth, 956 S .W.2d 883, 889-90 (Ky. 1997) . There was no abuse of
discretion in the admission of Dr. Spivack's opinion testimony .
V. PHOTOGRAPHS .
Appellant asserts that the trial court erred in admitting seventeen graphic color
photographs depicting L.M .'s various injuries. Appellant argues that the photographs,
especially those taken during the postmortem examination, were highly inflammatory
and unduly prejudicial, and that the same evidence could have been proven by the
Commonwealth by testimony of the two physicians or by stipulation.
Under KRE 401, evidence is relevant if it has any tendency to render the
existence of any consequential fact more or less probable, however slight that tendency
may be. Springer v. Commonwealth , 998 S.W.2d 439, 449 (Ky. 1999) ; Turner v.
Commonwealth, 914 S.W .2d 343, 346 (Ky. 1996) . Relevant evidence is admissible
unless excluded by some other rule. KRE 402. Under KRE 403, relevant evidence
"may be excluded if its probative value is substantially outweighed by the danger of
undue prejudice . . . ." "The general rule is that a photograph, otherwise admissible,
does not become inadmissible simply because it is gruesome and the crime is heinous."
Funk v. Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992) ; see also Holland v.
Commonwealth, 703 S.W.2d 876, 879 (Ky. 1985) ; Brown v. Commonwealth , 558
S .W.2d 599, 605 (Ky. 1977) . An especially gruesome photograph may become
inadmissible when its depictions go "far beyond demonstrating proof of a contested,
relevant fact." Holland , 703 S .W.2d at 879.
When ruling on the admissibility of a gruesome photograph, the trial court should
consider whether evidentiary alternatives would sufficiently prove the fact at issue
without a comparable risk of prejudice . Old Chief v. United States , 519 U .S. 172, 184
85,117 S.Ct. 644, 652,136 L.Ed.2d 574 (1997) ; Norris v. Commonwealth , 89 S.W .3d
411, 416 (Ky. 2002). However, the evidence must be highly inflammatory and
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prejudicial to compel a party to employ evidentiary alternatives . Adkins v.
Commonwealth, 96 S .W.3d 779, 794 (Ky. 2003); Salisbury v. Commonwealth , 417
S.W.2d 244, 246 (Ky. 1967) . "Were the rule otherwise, the state would be precluded
from proving the commission of a crime that is by nature heinous and repulsive ."
Salisbury , 417 S.W.2d at 246.
The most gruesome photographs to which Appellant objected are autopsy
photographs showing either L.M.'s bowels (revealing the internal damage to L.M .'s
abdomen) or L.M.'s skull with the scalp peeled away from it so as to reveal the deep
tissue bruising on the top of the head . These photographs, though indeed gruesome,
do not approach instances where this Court has overturned a lower court's ruling on
admission . See, e .g Funk, 842 S .W .2d at 478-79 (photos of corpse with animal
mutilation, substantial decomposition, and maggot infestation) ; Clark v. Commonwealth ,
833 S.W.2d 793, 794-95 (Ky. 1991) (up-close color slides and videotape of substantially
decomposed corpse with "decompositional fluid oozing" therefrom, projected in
courtroom excessively); Holland , 703 S.W.2d at 879-80 (photographs of corpse with
extensive animal mutilation) . Compare Adkins, 96 S.W.3d at 794-95 ("gruesome"
photograph of large holes in murder victim's skull held admissible) ; Foley v.
Commonwealth , 953 S.W.2d 928, 935 (Ky. 1997) (photographs of burial site and
corpses wrapped in quilts, roughly two years after the murder, held admissible) ; City of
Louisville v. Yea~er, 489 S.W.2d 819, 820-21 (Ky. 1973) (color photographs of gunshot
wounds held admissible) ; Fauqht v. Commonwealth , 467 S .W.2d 322, 325 (Ky. 1970).
Although we have recognized an exception to the admissibility of an otherwiserelevant, gruesome picture when its subject matter has been altered by "extraneous
causes," Clark, 833 S.W.2d at 794, this exception does not contemplate human
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manipulation necessary to present the relevant evidence . Davis v. Commonwealth , 967
S.W .2d 574, 579 (Ky. 1998) (holding autopsy photographs of victim's brain proper
means of proving fatal head injury to infant child). In this case, the deep-tissue injuries
to L .M.'s scalp and the internal bruising and hemorrhaging of her abdomen could not be
proven by demonstrative evidence unless photographs were taken during the autopsy.
The trial court did not abuse its discretion in admitting these photographs.
V1. MERGER .
Appellant asserts that the trial court erred by instructing the jury on seven
separate counts of first-degree criminal abuse in violation of the Fifth Amendment's
proscription against double jeopardy. The Commonwealth presented medical testimony
from two different medical experts regarding the nature, timing, and possible cause of
the various injuries sustained by L.M.6
The jury instruction for each count of criminal abuse was as follows :
You will find the defendant . . . guilty of First Degree Criminal Abuse
under this Instruction if, and only if, you believe from the evidence beyond
a reasonable doubt all of the following:
A.
That in Lawrence County, Kentucky, on or before February
8th, 2002, and before the finding of the indictment herein, he
intentionally abused [L.M.], by [breaking her left arm] ;
B.
That he thereby caused [L .M.] to be subjected to torture or
cruel punishment[ ;]
AND
C.
That [L.M.] was at that time twelve (12) years of age or less .
6 The trial judge dismissed the count of criminal abuse premised upon the severed
frenulum and the bruising around L .M .'s mouth on grounds that these injuries were part
of the course of conduct that ultimately lead to L.M.'s death, i.e. , holding her mouth and
nose closed long enough to cause asphyxiation .
- 1 7-
Each of the other six instructions was identical, but identified a different injury suffered
by L. M . (as in the bracketed portion of the instruction, above). Appellant argues the
instructions with respect to the three impact injuries to L.M .'s abdomen (i.e. , "the newest
set of bruising," "the oldest set of bruising;" and "the internal injuries to her stomach
(tearing of the mesentery)"), and the two instructions with respect to the burn injuries
(i.e., "on the stomach ;" and "on the right wrist"), improperly permitted convictions for
separate injuries resulting from single criminal acts.
"The question of when an act, transaction or course of conduct shall be
considered to constitute multiple offenses rather than a single offense is one on which
the law is unclear, and the answer to which may vary according to a varying legislative
intent ." Hennemeyer v. Commonwealth , 580 S .W.2d 211, 214 (Ky. 1979) ; see also
Slone v. Commonwealth , 266 Ky. 366, 99 S.W.2d 207, 209 (1936). Although the
proscriptive language in KRS 508.100(1)(c) states that the offense occurs when a
defendant "intentionally abuses" and thereby "[c]auses torture, cruel confinement or
cruel punishment" (language that might seem to criminalize a course of conduct rather
than a single incident), abuse is defined in KRS 508.090(1) as, inter alia, "the infliction
of physical pain, iniu
, or mental injury ." (Emphasis added.) This language clearly
delineates the infliction of a single injury to be a unit of prosecution, so long as its
infliction was intentional, the victim was in the defendant's custody, and, inter alia ,
"torture, cruel confinement or cruel punishment" is caused thereby. See Williams v.
Commonwealth, 178 S .W .3d 491, 495 (Ky. 2005) ("The singular form of 'photograph'
read in conjunction with the term 'any' clearly indicates that the Legislature intended
prosecution for each differing photograph .").
KRS 508 .100 "covers situations where a person is in the custody of another and
is injured by an abusive act of that person ." Commonwealth v. Chandler, 722 S.W.2d
899, 901 (Ky. 1987) (emphasis added) . Like assault, criminal abuse is a result offense ;
the injury sustained by the child and the resulting torturous physical pain are among the
results KRS 508.100(1)(c) proscribes . See id. at 901 (explaining that criminal abuse is
"parallel" to assault); Commonwealth v. HacLer,, 41 S .W .3d 828, 831 (Ky. 2001)
(explaining that assault is a "result" offense, with bodily injury being the prohibited
result).
In the case sub judice , Dr. Rolf testified that there were at least ten separate
bruises to L.M .'s abdomen, and Dr. Spivack testified that the bruising resulted from
multiple blunt-trauma impacts. The doctors divided the bruising into two categories
distinguishable by time, some older and some more recent, indicating at least two
separate occurrences of criminal abuse . The trial court instructed the jury on one count
of criminal abuse related to the older bruises and another count related to the newer
bruises. Appellant agrees this was proper but asserts that it was error to also instruct
the jury on a separate count of criminal abuse related to the internal tearing of the
mesentery, arguing that one of the blunt-force impacts that caused the external bruising
must also have caused the injury to the mesentery . Appellant asserted this same
argument to the trial judge, who noted that neither of the doctors testified that the injury
to the mesentery must have resulted from the same impact that caused one of the
external bruises .
[Y]ou can argue that this is one and tell the jury they can't find them guilty
of both, if you wish, but that is an internal injury that's not specific to any
particular bruises as brought out by the Commonwealth and wasn't on
cross-examination associated with any of the specific areas of bruising to
the abdomen . . . .
- 1 9-
Appellant would have been entitled to an instruction requiring the jury to find whether
the injury was caused by an act that was separate and distinct from the acts that caused
the other injuries, such as that approved in Schrimsher v. Commonwealth,
S .W.3d
n .3, No . 04-SC-0544-MR (slip op . at 11 n.3) (Ky. Apr. 20, 2006). However,
there was no request for such an instruction and no objection to the failure to give such
an instruction . 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 . . . . ").
The same analysis applies to the different burns found on L.M.'s body. One
incident of applying a hot cigarette lighter to L.M.'s body created the prohibited result
under KRS 508 .100 (intentional infliction of abuse, i .e. , "injury" under KRS 508.090(1)),
and the subsequent act of re-applying the hot cigarette lighter to a different part of
L .M.'s body constituted a second instance of conduct proscribed by KRS 508.1 00.7 See
Williams , 178 S.W.3d at 495 ("[A] person who generates differing and multiple
prohibited 'photographs . . . commits multiple offenses [sic] of KRS 531 .310 [use of a
minor in a sexual performance], even though each such differing photograph involves
the same subject captured in a narrow timeframe ."); Hennemeyer , 580 S .W.2d at 214
(holding that six separate gunshots fired by defendant at pursuing police over a span of
fifteen minutes were six separate counts of wanton endangerment) ; see also SanchezRengifo v. United States , 815 A.2d 351, 358-59 (D.C. 2002) (varying sexual acts over
period of two hours constitute separate criminal offenses because each represented
separate criminal impulse) ; State v. Soonalole, 992 P.2d 541, 543-44 (Wash . Ct. App.
2000) (holding two separate acts of fondling that occurred during same car ride
Under this analysis, each of the seven separate burns to L.M.'s abdomen would
constitute a separate act of abuse .
- 20-
constituted two separate "units of prosecution" for double jeopardy purposes); State v.
Rummer, 432 S .E.2d 39, 47-48 (W. Va. 1993) (double jeopardy not violated by
conviction and punishment of two counts of sexual abuse, one for fondling victim's
breasts and second for fondling victim's genitalia, within span of less than five minutes) .
Therefore, Appellant's convictions and punishments for separate counts of criminal
abuse do not violate the proscription against double jeopardy.
VII. JURY INSTRUCTIONS .
Appellant was convicted of intentional murder and criminal abuse in the firstdegree . He asserts that the trial court erred by refusing his requested jury instructions
on wanton murder, KRS 507.020(1)(b), second-degree manslaughter, KRS 507.040(1),
and reckless homicide, KRS 507 .050(1), as alternative or lesser-included offenses of
intentional murder; and criminal abuse in the third-degree, KRS 508 .120(1)(c), as a
lesser-included offense of criminal abuse in the first-degree .
RCr 9.54(1) provides : "It shall be the duty of the court to instruct the jury in
writing on the law of the case . . . ." Under this rule, "[a] defendant is entitled to an
instruction on any lawful defense which he has. Although a lesser included offense is
not a defense within the technical meaning of those terms as used in the penal code, it
is, in fact and principle, a defense against the higher charge." Slaven v.
Commonwealth, 962 S.W.2d 845,856 (Ky. 1997) (citations omitted) . We review a trial
court's rulings regarding instructions for an abuse of discretion. Johnson v.
Commonwealth , 134 S .W.3d 563, 569-70 (Ky. 2004) .
Appellant's defense to all charges at trial was alibi ; he denied having any
knowledge regarding the cause of L.M.'s death and denied committing any abuse or
causing harm to L.M . at any point in time . Although the defense of alibi does not
- 21-
preclude an instruction on mitigation or justification if the evidence supports an
inference of the requisite circumstances therefor, Commonwealth v. Collins , 821 S .W.2d
488, 491 (Ky. 1991) ; Brown v. Commonwealth , 308 Ky. 486,214 S.W.2d 1018,1019-20
(1948), there must be some evidence in the record to support such an inference before
a trial court is required to instruct on a defense or lesser-included offense . Taylor v.
Commonwealth, 995 S .W.2d 355, 360-61 (Ky. 1999) ; see also Hopper v. Evans, 456
U.S . 605, 611, 102 S .Ct. 2049, 2053, 72 L.Ed .2d 367 (1982) (holding that due process
requires an instruction on a lesser included offense only "when the evidence warrants
such an instruction") ; Parker v. Commonwealth , 952 S .W.2d 209, 211-12 (Ky. 1997) .
Appellant requested instructions on homicide and criminal abuse offenses that
require conduct that is either wanton (KRS 507 .020(1)(b); KRS 507.040(1)(a)) or
reckless (KRS 507.050(1); 508.120(1)(c)) . However, as the trial court found, the
evidence presented in this case does not support any inference of wanton or reckless
conduct. As for the asphyxiation, the uncontroverted testimony of two medical experts
established that L.M . would have lost consciousness one or two minutes after her
airways were forcibly constricted, and that the assailant would have had to continue this
act for an additional two or three minutes before L.M. ultimately died.
The two doctors testified similarly with respect to the injuries supporting each of
the seven counts of criminal abuse in the first degree of which Appellant was convicted .
Each count corresponded to one of the following of L.M.'s injuries: (1) the burn on her
wrist; (2) the fractured humerus ; (3) the older bruises on her abdomen ; (4) the newer
bruises on her abdomen ; (5) the tearing of the mesentery ; (6) the bruises on the top of
her head ; and (7) the burns on her abdomen . The medical testimony concluded that
each of these injuries was "inflicted," not accidental . Appellant's defense to these
- 22-
charges was outright denial of any involvement in or knowledge of their causes . He
offered no theory as to how he might have unintentionally ( i .e . , recklessly or wantonly)
inflicted these injuries .
"Proof of intent . . . may be inferred from the character and extent of the victim's
injuries . Intent may be inferred from actions because a person is presumed to intend
the logical and probable consequences of his conduct and a person's state of mind may
be inferred from actions preceding and following the charged offense ." Parker, 952
S .W.2d at 212; see also Davis , 967 S .W.2d at 581 (In prosecution for criminal abuse
and homicide, "[i]ntent may be inferred from the act itself and/or the circumstances
surrounding it."); Davidson v. Commonwealth , 340 S.W.2d 243, 244 (Ky. 1960). There
is no evidence supporting a finding that Appellant acted wantonly or recklessly . If the
jury disbelieved his alibi (that he did not abuse or kill L.M . and had no knowledge of how
she was abused or killed), none of the circumstantial evidence tending to implicate him
as the perpetrator-i .e . , Kirk denied any involvement or knowledge, all injuries were
"inflicted," he was awake and Kirk was asleep the night L.M. was killed, and no one else
had access to L .M. during her last hours--suggested any theory of unintentional killing
or abuse . Without some evidence suggesting facts that would permit even an inference
of wanton or reckless conducte___gc . , an admission that Appellant acted violently toward
L.M ., intending only to quiet the child but not to asphyxiate her; being rough with the
child but intending only to scare or discipline her; extreme emotional distress ; or
intoxication negating the element of intentan instruction on unintentional homicide or
criminal abuse was not required .
The evidence presented did not support an instruction on wanton
murder . Wanton murder is not a lesser-included offense of intentional
murder. It is simply murder committed with a different state of mental
culpability . . . . It is not proper to instruct the jury on a wanton offense
- 23-
when. all the evidence indicates that it would be unreasonable for the jury
to believe that the defendant's conduct was anything other than
intentional . The evidence does not indicate wanton conduct .
Foster v. Commonwealth , 827 S .W.2d 670, 677-78 (Ky. 1991) (citations and quotations
omitted) . See also Parker, 952 S .W.2d at 211-12 (holding defendant not entitled to
instructions on second-degree manslaughter and reckless homicide in intentional
murder prosecution because his defense was alibi and no evidence was presented to
counter Commonwealth's evidence that conduct was intended) ; Pilon, 544 S.W.2d at
231 ("There is no evidence in this record which would justify the giving of a recklesshomicide instruction . After all, [the defendant] and the mother both testified that he had
not touched [the victim] at any time prior to his death . Thus, there is an absolute void in
the record upon which the trial court might have justified the requested instruction.").
Therefore, we find no error in the trial court's refusal to instruct on wanton murder,
second-degree manslaughter, reckless homicide, or third-degree criminal abuse.
VIII. ALLEGED SLEEPING JUROR.
Appellant filed a CR 60.02 motion for a new trial on grounds that he learned from
a newspaper reporter that a juror had been sleeping during the trial . The trial judge
admitted that the allegation was brought to its attention in a note from another juror,
identified as the foreperson of the jury, at the conclusion of the guilt-phase closing
argument but did not state what action, if any, he took in response to the note . The note
is not in the record and no evidence from either the juror who wrote it or the news
reporter was offered in support of the motion for a new trial .
"[A] juror's inattentiveness is a form of juror misconduct, which may prejudice the
defendant and require the granting of a new trial." Lester v. Commonwealth , 132
S .W.3d 857, 862 (Ky. 2004) . However, as a threshold matter, the aggrieved party must
-24-
present some evidence that the juror was actually asleep or that some prejudice
resulted from that fact. The record does not even disclose at what point during the trial
the juror allegedly slept, whether during the Commonwealth's or the defense's
presentation of evidence, or during closing argument by counsel, $ or how Appellant was
harmed by the occurrence . For a court even to entertain an objection on this basis after
final judgment, a party must certainly show more than Appellant has in the case sub
'u~ dice . See Tanner v. United States , 483 U.S . 107, 120-21, 107 S .Ct. 2739, 2747-48,
97 L .Ed .2d 90 (1987) ("Allegations of juror misconduct, incompetency, or
inattentiveness, raised for the first time days, weeks, or months after the verdict,
seriously disrupt the finality of the process .").
Moreover, "[t]he trial judge is in the best position to determine the nature of
alleged juror misconduct and the appropriate remedies for any demonstrated
misconduct." United States v. Sherrill , 388 F.3d 535, 537 (6th Cir. 2004) . Without some
evidence beyond bare unsworn hearsay statements that a juror was asleep at some
point during the trial, this Court is unwilling to find an abuse of discretion by the trial
court . Powell v . Louisville & N . R. Co., 172 Ky. 285,189 S.W. 213,214-15 (1916) ("[N]o
objection having been made during the progress of the trial to this fact, it is evident that
even if the juror did nod at some time during the trial it was not for a sufficient length of
time to have attracted the attention of any one of the . . . able counsel representing
appellantp . . . ."); see also Young v. Commonwealth , 50 S.W.3d 148, 164 (Ky. 2001)
(mistrial not required when juror, upon inquiry by court, denied being asleep) ; Shrout v.
Commonwealth, 226 Ky. 660, 11 S.W.2d 726, 727 (1928) .
8 It seems unlikely that defense counsel would not have noticed that a juror was
sleeping during her own closing argument.
- 2 5-
IX. ERRORS IN FINAL JUDGMENT.
Although the jury was only instructed on seven counts of criminal abuse and the
jury found Appellant guilty of only those seven counts, the amended final judgment
erroneously adjudged him guilty of eight counts of criminal abuse and sentenced him to
ten additional years of imprisonment for the eighth count . The Commonwealth
concedes the error.
Appellant also asserts that the final judgment fails to state whether his sentences
are to run consecutively or concurrently as required by RCr 11 .04(1). If the court does
not specify the manner in which a sentence is to run, it shall run concurrently with any
other sentence which the defendant must serve, subject to exceptions not applicable
here. KRS 532.110(2). However, Appellant concedes that at the sentencing hearing
the trial judge orally expressed his intent to run the sentences consecutively "[i]nsofar as
possible for a total of 120 years ." We do not know whether the trial judge changed his
mind or whether the omission from the judgment was a clerical error. Cardwell v.
Commonwealth , 12 S .W.3d 672, 674 (Ky. 2000). If the omission was a clerical error
and the trial judge intended to impose a sentence in excess of seventy years, the
sentence violates KRS 532.110(1)(c). The judgment must be vacated insofar as it
recites a conviction of and sentence for an offense of which Appellant was not
convicted, and insofar as it imposes a maximum aggregate sentence in excess of
seventy years .
Accordingly, Appellant's convictions are affirmed but the judgment entered
pursuant to those convictions is vacated and this case is remanded to the Lawrence
Circuit Court for entry of a new judgment that conforms to RCr 11 .04(1) and KRS
532.110(1)(c) .
All concur.
COUNSEL FOR APPELLANT :
Julie Namkin
Assistant Public Advocate
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Ian G. Sonego
Tami Allen Stetler
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
,Suyreme Courf of ~irnfurhV
2004-SC-0452-MR
NICK RATLIFF
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE DANIEL SPARKS, JUDGE
02-CR-20-1
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Memorandum Opinion Of The Court rendered June 15, 2006, is modified on
its face by substitution of the attached
page
1 in lieu of the page 1 of the original
opinion. Said modification does not affect the holding of the original Memorandum
Opinion of the Court.
ENTERED: July 28, 2006
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