Opinion
NO. 2014-CA-002088-MR
12-22-2016
MICHAEL J. LEMON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John Gerhart Landon Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NOS. 14-CR-001531 AND 14-CR-001956 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE: This matter comes before this Court on appeal from the Jefferson Circuit Court. Michael J. Lemon was sentenced to 13 years in prison after a Jefferson County jury convicted him of third-degree assault and for being a persistent felony offender. He argues that reversible error occurred during his criminal trial. After review, we find no error and affirm.
I. BACKGROUND
On March 6, 2014, Lemon drunkenly boarded a city bus in Louisville using a walker. The bus driver admitted him even though his transit card was expired. Once on board, Lemon sat in the handicapped section and quickly became unruly. He yelled at passengers and complained about the air. When the bus driver asked him to move seats to accommodate a new passenger in a wheelchair, Lemon turned indignant and started insulting the new passenger. As a result, the bus driver asked Lemon to get off the bus. Lemon reluctantly complied.
As he was stepping off the bus, Lemon fell. He landed on the pavement face-first and suffered a significant facial laceration. The bus driver promptly called dispatch to send emergency medical services to the scene. Shortly thereafter paramedics Kenneth Taylor and Melisa Forst arrived via ambulance. Blood was pouring from Lemon's facial wound.
Taylor was the first to approach Lemon. When he introduced himself as an EMT, Lemon was not receptive and swung his walker in the air. Lemon also spat blood and some landed on the right side of Taylor's face before entering his eye. After witnessing Lemon's interaction with Taylor, Forst alerted her superiors to call the police. The police arrived and ordered Lemon to go to the hospital after surveying the scene. Lemon was then loaded into the ambulance and transported to the hospital.
While in the ambulance, Lemon continued to yell. He also spat blood at Forst multiple times. Some of Lemon's blood entered Forst's eye. Lemon told her that he hoped she got "[his] AIDS." After arriving at the hospital, Lemon kept yelling that he hoped Forst got his AIDS. As it turned out, Lemon was not HIV positive; however, he did have Hepatitis C.
Lemon was charged with two counts of third-degree assault: one count for spitting on Taylor and another for spitting on Forst. The jury acquitted him of assault against Taylor, but convicted him for assaulting Forst. Lemon was also convicted in a separate penalty phase of being a first-degree persistent felony offender. On the jury's recommendation, the trial court ultimately sentenced Lemon to 13 years in prison. This appeal followed.
The Commonwealth filed a notice of cross-appeal following this sentence, but moved to dismiss this cross-appeal with the filing of its brief with this Court. The cross-appeal was dismissed by separate order entered on November 12, 2015.
II. DISCUSSION
On appeal, Lemon first argues the trial court committed reversible error by allowing the Commonwealth to amend the mental state charged in the indictment from "recklessly" to "intentionally" in the jury instructions. Specifically, Lemon asserts this amendment prejudiced his substantial rights in violation of RCr 6.16. For the following reasons, we disagree.
Kentucky Rules of Criminal Procedure.
Under RCr 6.16, the trial court may permit the Commonwealth to amend an indictment at any time prior to the jury's verdict "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."
Here, the indictment charged Lemon with third-degree assault for spitting on Forst. The jury instructions also charged Lemon with third-degree assault for spitting on Forst. The only difference was that the jury instructions charged Lemon of "intentionally" attempting to injure Forst, while the indictment charged Lemon of "recklessly" attempting to injure Forst. Because a person is guilty of assault in the third degree under KRS 508.025(1)(a)(4) whether he attempts to cause physical injury to emergency medical personnel "recklessly" or "intentionally," the jury instructions charged the same offense as the indictment.
Kentucky Revised Statutes. --------
Moreover, whether Lemon acted "intentionally" was an issue from the start of the case. The indictment expressly stated that criminal attempt to injure Forst was a potential element of Lemon's third-degree assault charge, and criminal attempt requires "intent" under KRS 506.010. Therefore, Lemon had a fair opportunity to offer any applicable defense to negate his alleged intent, including voluntary intoxication, and the Commonwealth did not prejudice Lemon's substantial rights by substituting a mental state with a higher degree of culpability than "recklessness" in the jury instructions.
For his second and final argument on appeal, Lemon argues that the trial court erred by not granting his motion to strike a juror for cause. According to Lemon, the juror in question was a physician who failed to answer whether he had knowledge of Hepatitis C during voir dire. For the following reasons, no error occurred.
A trial court's decision whether to excuse a juror for cause is reviewed for an abuse of discretion. Adkins v. Commonwealth, 96 S.W. 3d 779, 795 (Ky. 2003). Moreover, "[t]o obtain a new trial because of juror mendacity, 'a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'" Id. at 796 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).
Here, a review of the record clearly shows that the juror in question responded that he was familiar with Hepatitis C. Moments after the juror confirmed for Lemon's counsel that he worked in the medical field as a physician, Lemon's counsel asked the entire jury pool, "Does anyone here know what Hepatitis C is?" The juror promptly raised his hand in the affirmative. Accordingly, there was no reason to strike the juror.
The decision of the Jefferson Circuit Court is hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John Gerhart Landon
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Dorislee Gilbert
Special Assistant Attorney General
Louisville, Kentucky