Opinion
NO. 2011-CA-001923-MR
01-11-2013
MASON D. CANTRILL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CR-00061
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. CAPERTON, JUDGE: Mason D. Cantrill was convicted by a Montgomery County jury of first-degree assault and possession of a firearm by a convicted felon. He was sentenced to eleven years' imprisonment. On appeal, Cantrill presents two alleged errors: (1) that he was entitled to a directed verdict on the lack of evidence of serious physical injury; and (2) the court erred in failing to instruct the jury on imperfect self-defense. Finding no error, we affirm Cantrill's conviction and sentence.
On February 19, 2010, Ronald Shortridge was sitting on his front porch swing when his brother-in-law, Mason Cantrill, and Cantrill's girlfriend, Carol Ziegler, walked up to him. Cantrill accused Shortridge of calling Cantrill's estranged wife to start trouble. Shortridge and Cantrill exchanged words, with Shortridge telling Cantrill "I'll fix you." Shortridge then went and got his shotgun, came to the door and told Cantrill and Ziegler to leave. At this point, Cantrill's and Shortage's versions of the events differ. Cantrill's version of events was that Shortridge fired a shot between him and Ziegler, narrowly missing her head. Shortridge's version of events was that Cantrill and Ziegler would not leave so he fired a shot into the ground.
Regardless, a fight ensued between Cantrill and Shortridge. During the fight Shortridge's wife (and Cantrill's sister) Teresa got the shotgun and threw it outside. After the fight ended, Cantrill and Ziegler returned to their home, which was about fifty yards away. Cantrill's mother returned with groceries for Shortridge and Teresa and she asked Cantrill to take the groceries to them. A short period of time later, Cantrill returned to Shortridge's home with the groceries in his truck, which also contained a rifle.
Cantrill testified that he was worried because of his past experiences with Shortridge, particularly his knowledge that Shortridge abused Teresa when he was angry or when he was taking pills. Presumably this history entered into his mistaken belief that Shortridge possessed a gun and was going to fire upon Cantrill when Cantrill shot Shortridge.
The parties disagree whether this was ten minutes or thirty to forty minutes.
Upon arrival at Shortridge's home Cantrill asked Shortridge why he was calling Cantrill's estranged wife. Cantrill claimed that he took the groceries to the back door where Shortridge opened it and punched him in the face. Shortridge then said "I'll fix you," and started back inside. Cantrill assumed that Shortridge was getting his shotgun so Cantrill went to his truck and got his rifle. Cantrill waited at the end of the handicap ramp that led to the door. He thought he saw a gun inside, so he fired his rifle through the closed door. Cantrill did not realize that the shotgun was still outside. Teresa came outside and screamed at Cantrill; Shortridge had been shot in the abdomen. Cantrill returned to his own home and later surrendered peacefully to the police.
Shortridge claimed that Cantrill arrived with the groceries and told Shortridge to come outside; Shortridge was on the phone. Shortridge went outside, told Cantrill to leave, and then went inside. Instead of leaving, Cantrill got his gun from his truck. When Shortridge picked up his phone to resume his call, Cantrill shot him through the door. Shortridge was shot in the lower abdomen and was airlifted to the University of Kentucky hospital where he stayed for two weeks.
Shortridge testified about his injuries. He suffered a fractured hip, a perforated bowel, a ruptured disc. He lost his speech, and much of his intestines, colon, and bowel. Upon being discharged from the hospital, he underwent rehabilitation at Cardinal Hill hospital to learn to walk and talk again. Shortridge testified that he was in constant pain as a result of his injuries, and that his left leg was now smaller than his right leg which caused him problems walking. Additionally, Shortridge testified that the bullet was still inside of him, causing numbness in his leg. Shortridge acknowledged taking oxycodone and Paxil on the day in question. At trial he and Teresa were estranged.
Shortridge's testimony went on to further implicate Cantrill in a dramatic fashion. Shortridge stated that prior to being shot Cantrill had an "evil look" on his face, "some kind of smile." After shooting Shortridge Cantrill came into the house, held a gun to Shortridge's head and asked if he wanted to be put out of his misery. Shortridge acknowledged that he, too, was a convicted felon and pled guilty to possessing a firearm. He received probation.
Shortridge was questioned concerning a domestic violence order. He claimed that his daughter beat up Teresa after Teresa caught her stealing his pain medication. Shortridge claimed that Teresa said that he had beaten her instead of his daughter, but based on these facts the case was dismissed. Shortridge admitted to having an altercation with Sheila Willoughby, Cantrill's sister. Shortridge hit Shelia but claimed it was unintentional. The case arising from these facts was not dismissed.
The responding detective also testified. Detective Charles of the Montgomery County Sheriff's Department testified that when he arrived at the scene Shortridge was on the floor and Teresa was holding a rag to his abdomen. Shortridge was then airlifted to the hospital. Detective Charles testified that the side door had a bullet hole in it and glass was both inside and outside the house. Cantrill informed Detective Charles that he was about fifteen feet away from the door when he fired the shot. Cantrill's written statement was admitted into evidence. Detective Charles testified that Cantrill's prior felony conviction was for DUI, fourth offense, from October 2009, and was admitted into evidence.
Zeigler testified as to the first altercation between Cantrill and Shortridge. Zeigler stated that Shortridge fired at her and that he had not asked them to leave prior to doing so. She testified that Shortridge appeared to be under the influence of drugs. She had witnessed domestic violence between Teresa and Shortridge.
After hearing the aforementioned testimony, the jury convicted Cantrill of first-degree assault and possession of a firearm by a convicted felon. Cantrill was sentenced to eleven years' imprisonment. It is from this that he now appeals.
On appeal Cantrill presents two alleged errors: (1) that he was entitled to a directed verdict on the lack of evidence of serious physical injury; and (2) the court erred in failing to instruct the jury on imperfect self-defense. In response, the Commonwealth argues: (1) the trial court correctly denied Cantrill's motion for a directed verdict as the Commonwealth presented substantial evidence of serious physical injury; and (2) Cantrill's argument concerning the jury instruction is unpreserved. We agree that the issue concerning the jury instructions is unpreserved; however, Cantrill requests palpable error review under Kentucky Rules of Criminal Procedure (RCr) 10.26, which we shall oblige. With these arguments in mind we turn to the first issue, whether Cantrill was entitled to a directed verdict.
In assessing whether Cantrill was entitled to a directed verdict, 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.2d 186, 187 (Ky. 1991). When confronted with a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky. 2010).
Cantrill argues that he was entitled to a directed verdict because of the lack of evidence of serious physical injury. This argument is premised on the assertion that the testimony offered by Shortridge concerning his injuries and the malingering effects therefrom was insufficient. The Commonwealth did not introduce medical records or the testimony of a treating medical professional. We do note that the Commonwealth presented the testimony of the responding detective corroborating that a bullet had passed through the door, that Shortridge was lying on the floor bleeding, and that he had to be airlifted to the hospital.
Of import, Kentucky Revised Statutes (KRS) 500.080(15) defines serious physical injury as "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ..." Cantrill desires this Court to depart from our prior jurisprudence and require professional medical testimony concerning serious physical injury. We decline to so do.
As stated in Brooks v. Commonwealth, 114 S.W.3d 818, 824 (Ky. 2003), "Although medical testimony may be the preferred method of proving the serious physical injury requirement, lay testimony may be considered." Brooks at 824, citing Johnson v. Commonwealth, 926 S.W.2d 463 (Ky.App. 1996).
Moreover, "the victim was competent to testify about his own injuries." Commonwealth v. Hocker, 865 S.W.2d 323, 325 (Ky. 1993), citing Ewing v. Commonwealth, Ky., 390 S.W.2d 651, 653 (1965). As in Hocker, a second witness, here the responding detective, testified sub judice as to his observations of the victim after the assault. Clearly, the victim's testimony that he sustained a gunshot wound to the abdomen and had to be airlifted to the hospital is sufficient to sustain the Commonwealth's burden of proof regarding serious physical injury, as such injury and the treatment demonstrated a substantial risk of death.
We find it ludicrous to suggest that a victim being airlifted to the hospital after sustaining a gunshot wound to the abdomen would have sustained anything less than a serious physical injury. This is particularly so in light of the testimony of Shortridge that he suffered a fractured hip, perforated bowel, ruptured disc, lost his speech for a period of time, and underwent rehabilitation at Cardinal Hill Hospital to learn to walk and talk again. Additionally, Shortridge testified that he was in constant pain as a result of his injuries, and that his left leg was now smaller than his right leg which caused him problems walking. Thus, the evidence sub judice was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant was guilty. Accordingly, the trial court did not err in denying Cantrill's motion for a directed verdict.
Last, Cantrill argues the court erred in failing to instruct the jury on imperfect self-defense and lesser assault charges. Cantrill argues that his defense at trial was that he shot at Shortridge because Cantrill believed that Shortridge had a gun and was about to shoot him. Cantrill concedes that this issue concerning the jury instructions was not properly preserved for our review and requests palpable error review pursuant to RCr 10.26.
We shall conduct a review pursuant to RCr 10.26. RCr 10.26 states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Manifest injustice requires showing a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). "To discover manifest injustice, a reviewing court must plumb the depths of the proceeding...to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable." Martin at 4.
Further refining the parameters of RCr 10.26, the Kentucky Supreme Court in Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), undertook an analysis of what constitutes a palpable error:
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.Id. at 349.
At the outset, we note that our review of a trial court's rulings with respect to jury instructions is for abuse of discretion. Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009) citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
As stated in Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000):
A trial court is required to instruct on every theory of the case reasonably deducible from the evidence. Ragland v. Commonwealth, Ky., 421 S.W.2d 79, 81 (1967); Callison v. Commonwealth, Ky.App., 706 S.W.2d 434 (1986) (In a criminal case, it is the duty of the court to prepare and give instructions on the whole law. This general rule requires instructions applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.)Manning at 614.
However, the trial court's duty to instruct "does not require an instruction on a theory with no evidentiary foundation." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998), citing Barbour v. Commonwealth, 824 S.W.2d 861, 863 (Ky. 1992), overruled on other grounds, McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky. 1994); Neal v. Commonwealth, 303 S.W.2d 903 (Ky. 1957). See also RCr 9.54. Moreover, "An instruction on a lesser included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged, but conclude that he is guilty of the lesser included offense." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995), citing Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78 (1977). With this in mind, we turn to Cantrill's arguments concerning his alleged entitlement to different jury instructions then those rendered by the court.
The court sub judice instructed the jury on assault in the first degree under KRS 508.010 which states:
(1) A person is guilty of assault in the first degree when:Cantrill argues that he was entitled to the imperfect self-defense instruction as discussed supra. Thus, he claims that an instruction for assault in the second degree under KRS 508.020 should have been given. KRS 508.020 states:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or(2) Assault in the first degree is a Class B felony.
(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
(1) A person is guilty of assault in the second degree when:We disagree, as sub judice Cantrill used a firearm, which, under KRS 500.080(4)(b) clearly qualifies as a deadly weapon, and was used to inflict the serious physical injury to Shortridge, i.e., a gunshot wound. Thus, he was not entitled to an instruction for assault in the second degree.
(a) He intentionally causes serious physical injury to another person; or(2) Assault in the second degree is a Class C felony.
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
Additionally, Cantrill argues that the court should have been instructed on assault in the fourth degree under KRS 508.030, which states:
(1) A person is guilty of assault in the fourth degree when:
(a) He intentionally or wantonly causes physical injury to another person; or(2) Assault in the fourth degree is a Class A misdemeanor.
(b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
Again, we disagree with Cantrill that the evidence supported a finding that the gunshot wound to the abdomen requiring Shortridge to be airlifted to the hospital was only a physical injury instead of a serious physical injury. Thus, the trial court did not err in failing to give the lesser included offense instructions. Compare Swan v. Commonwealth, wherein the Kentucky Supreme Court recently addressed a gunshot wound which required a lesser included jury instruction on assault in the second degree as "The proof here simply does not establish such an all-or-nothing proposition." Swan v. Commonwealth, 2012 WL 3631412 (Ky. 2012)(2011-SC-000085-MR), as corrected (Sept. 11, 2012).
Last, Cantrill argues that he should have received an instruction under KRS 503.120, the imperfect self-defense statute.
KRS 503.120 provides:
(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.KRS 503.120.
(2) When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons.
In summary, "[a] mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant." Commonwealth v. Hager, 41 S.W.3d 828, 841-42 (Ky. 2001) (citing Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998)). Imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a defendant of a lesser offense, i.e., one for which wantonness or recklessness is the culpable mental state. Elliott at 420.
The above authorities, however, do not stand alone in determining whether Cantrill was entitled to a lesser included offense instruction. KRS 503.060 provides in part:
Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:KRS 503.060(3).
. . . .
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or
(b) He withdraws from the encounter and effectively communicates to the other person his
intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.
The entirety of the statute states:
(1) The defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful; or
(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; or
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or
(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.
We do not believe that the failure to instruct the jury on imperfect self-defense rises to the level of palpable error as there was not a substantial possibility that the result in the case would have been different. If Cantrill had received an imperfect self-defense instruction, then he would have also received an initial aggressor instruction. KRS 503.060(3) specifically addresses this situation where Cantrill was the initial aggressor.
Under established rules of statutory construction, "when two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails." Land v. Newsome, 614 S.W.2d 948, 949 (Ky. 1981); Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000); Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). Thus, we find no palpable error necessitating reversal.
Finding no reversible error, we affirm the conviction and sentence imposed upon Cantrill.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky