Opinion
2015-SC-000140-MR
10-20-2016
CHRISTOPHER MATTHEW JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Steven Jared Buck Assistant Public Advocate COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN III, JUDGE
NO. 14-CR-00064
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Christopher M. Johnson, appeals from a judgment of the Daviess Circuit Court convicting him of two counts of first degree assault and one count of first degree burglary. As a result of the convictions Appellant was sentenced to fifty years in prison.
As grounds for relief, Appellant contends that: (1) he was entitled to a directed verdict on the first degree assault charge involving his ex-girlfriend, Andrea Ward, because the evidence failed to establish that she sustained a serious physical injury; (2) the trial court erred by failing to instruct the jury on the lesser included offense of second degree assault in connection with both assault charges; (3) the trial court erred by failing to instruct the jury on the lesser included offense of criminal trespass in connection with the burglary charge; and (4) the trial court erroneously admitted evidence of prior bad acts committed by Appellant. For the reasons explained below we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Andrea Ward worked together at a bank and began a dating relationship. In due course, Appellant moved into Ward's home. The couple frequently argued and fought, and on several occasions, Appellant left the home because of their disagreements. Eventually, they broke up, and Appellant moved out of the residence permanently. Ward retrieved from Appellant his key to the house and the garage door opener he carried. She also attempted, unsuccessfully as it turned out, to reprogram the garage door mechanism to assure that Appellant could not enter the house using the garage door opener built into his vehicle.
A few months later, Appellant and Ward met at a park to discuss a medical issue involving Ward's son. When Ward mentioned that she had also discussed the issue with her ex-husband, Appellant became angry and broke out a tail light on Ward's vehicle.
A few weeks later, Ward announced on Facebook that she was in a relationship with Aaron Knott. When Appellant learned of Ward's new relationship, he tried unsuccessfully to contact her. He then went to Ward's residence, with the hood of his sweatshirt over his head, and entered the dwelling through the garage door, using the garage door opener on his vehicle, which he had parked at a nearby church. He was armed with a .45 caliber handgun. After entering the home, Appellant observed evidence indicating that Knott had taken up residence there.
Ward and Knott returned to the residence while Appellant was still there. Appellant shot Knott twice in the back and once in the side, inflicting life-threatening injuries to Knott. One of the bullets traveled through Knott's liver. Another bullet damaged his diaphragm and lung and caused bleeding in his chest. A third bullet hit Knott's spine and left him paralyzed.
Appellant then angrily confronted Ward, berating her for living with another man, and despite her pleas for mercy, Appellant shot Ward in the right knee and right hip. When Ward fled into a closet, Appellant fired several shots through the closet door, hitting her in the chest. Appellant then fled to his sister's residence where he informed her of the shootings and threatened to kill himself. His sister persuaded him to surrender to the police. As a result of the bullet wounds, Ward suffered a collapsed lung and an injury to the subclavian vein running through her arm, shoulder, and neck, causing bleeding into her chest. She remained in the hospital for six days.
Following a jury trial, Appellant was convicted of two counts of first degree assault and one count of first degree burglary. The jury recommended a sentence of twenty years on each of the assault charges and ten years on the burglary charge with all sentences to run concurrently for a total of twenty years' imprisonment; however, the trial court ultimately ordered all sentences to run consecutively and sentenced Appellant to fifty years' incarceration.
II. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON
THE FIRST DEGREE ASSAULT CHARGE INVOLVING ANDREA WARD
KRS 508.010(1)(a) provides that a person is guilty of assault in the first degree when "[h]e intentionally causes serious physical injury to another person by means of a deadly weapon or dangerous instrument." The associated jury instruction required the jury to find that Appellant "intentionally caused a serious physical injury to Andrea Ward by shooting her multiple times with a handgun" and "that the handgun was a deadly weapon."
Appellant claims that the evidence at trial failed to establish the existence of a serious physical injury, an essential element of first degree assault. For that reason, he contends that the trial court erred by denying his motion for a directed verdict on the first degree assault charge relating to the three gunshot wounds he inflicted upon Andrea Ward. In reviewing a motion for a 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 reserve for the jury questions as to the credibility and weight to be given to such testimony.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
"Serious physical injury" as an element of assault "means 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." KRS 500.080(15). The evidence established that the gunshot wound to Ward's chest caused a broken clavicle, a collapsed lung, and significant internal bleeding as a result of damage to a major vein. Her treating physician testified that some of her wounds were "relatively minor," but the chest injury caused a "significant amount" of bleeding and could have been fatal without proper treatment. At the time of Appellant's trial, more than thirteen months after the shooting, Ward still had a limited range of motion and weakness in her right arm because of the shooting.
We are satisfied that the injuries demonstrated by the evidence easily meet the statutory definition of serious physical injury. The trial court properly denied Appellant's motion for a directed verdict on the first degree assault charge involving Ward.
III. APPELLANT WAS NOT ENTITLED TO SECOND DEGREE ASSAULT
INSTRUCTIONS ON THE TWO ASSAULT CHARGES
Notwithstanding the evidence indicating that each victim sustained "serious physical injury," Appellant contends that the trial court erred by failing to include with the jury instructions on each assault charge, an instruction on the lesser offense of second degree assault. In contrast with the "serious physical injury" requirement for first degree assault, under KRS 508.020(1)(b), a second degree assault instruction is authorized when the evidence establishes that the defendant inflicted a mere "physical injury to another person by means of a deadly weapon or a dangerous instrument." (Emphasis added.) See Swan v. Commonwealth, 384 S.W.3d 77, 98 (Ky. 2012). A "physical injury" is defined as an injury that results in "substantial physical pain or any impairment of physical condition." KRS 500.080(13). Appellant argues that the jury could have reasonably concluded that Ward or Knott, or both of them, did not suffer a "serious physical injury" as a result of the shooting, but instead sustained only a "physical injury" as defined by KRS 500.080(13).
"It is fundamental that the trial judge must instruct the jury on the whole law of the case, RCr 9.54(1) . . . ." Commonwealth v. Jennings, 490 S.W.3d 339, 342 (Ky. 2016). However,
[a]s with any lesser degree of an offense, [a]n instruction on [second degree assault] is proper only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense [first degree assault], and yet believe beyond a reasonable doubt that he is guilty of the lesser offense [of second degree assault]. The trial court has no duty to instruct on theories of the case that are unsupported by the evidence.Spears v. Commonwealth, 448 S.W.3d 781, 789-90 (Ky. 2014) (internal citations and quotations omitted).
The question, then, is whether a reasonable jury could have found Appellant not guilty of first degree assault but guilty of second degree assault in relation to either of the two shootings. Swan, 384 S.W.3d at 99. "[I]f the jury could have found that he caused only physical injuries and not serious physical injuries, then he was entitled to the lesser-included offense instruction." Id.
Upon review of the evidence pertaining to the wounds suffered by each victim, we are satisfied that a reasonable jury could not conclude that either victim suffered a mere "physical injury" to the exclusion of a "serious physical injury." Ward suffered damage to a major vein, creating a substantial risk of death by the resulting blood loss. She also suffered a loss in range-of-motion and strength to her right arm, which was still present thirteen months after the shootings. Knott's injuries were even more devastating. One of the bullets passed through his liver; another shot traveled through his diaphragm and injured his lung; and finally, one of the shots hit his spinal cord causing paralysis in Knott's legs. Knott's spinal cord injury resulted in the loss of his ability to walk, clearly a "prolonged loss or impairment of the function of any bodily organ." The conclusion of a jury that either victim suffered a mere "physical injury" to the exclusion of a "serious physical injury" would be patently unreasonable. The trial court properly rejected Appellant's request for jury instructions on second degree assault.
IV. APPELLANT WAS NOT ENTITLED TO A CRIMINAL TRESPASS
INSTRUCTION ON THE BURGLARY CHARGE
Appellant next contends that he was entitled to an instruction on the lesser included offense of criminal trespass in connection with the first degree burglary charge. In the context of the evidence here, and pursuant to KRS 511.020, a person is guilty of burglary in the first degree when:
with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.(Emphasis added.) In contrast with first degree burglary, first degree criminal trespass occurs when one "knowingly enters or remains unlawfully in a dwelling." KRS 511.060(1). As defined in KRS 511.090(1), "A person 'enters or remains unlawfully' in or upon premises when he is not privileged or licensed to do so."
In support of this contention, Appellant points to his trial testimony that he entered Ward's residence for the innocent purpose of talking to Ward about repairing the damage he had done to her vehicle and about how to make their relationship work. He argues that the jury could have believed that, while he unlawfully entered Ward's residence, he did so without the intent of committing a crime, in which circumstance the jury could reasonably believe his crime was first degree criminal trespass under KRS 511.060(1) rather than burglary under KRS 511.020.
Upon application of the above statutes, Appellant was entitled to an instruction on the lesser included offense of first degree criminal trespass only if the jury could have reasonably believed from the evidence that Appellant had no intent to commit a crime when he entered the dwelling and, in addition, that he did not subsequently form that intent while he unlawfully remained therein. See Martin v. Commonwealth, 571 S.W.2d 613, 614-615 (Ky. 1978) (holding that in a situation where the evidence plausibly demonstrated that the defendants unlawfully entered a home to investigate a burglary, rather than to commit a crime, a jury instruction on the lesser included offense of criminal trespass was required).
However, even if a jury might reasonably believe that Appellant initially entered the dwelling without the intent to commit a crime, a point we do not acknowledge, the evidence is overwhelming that he did in fact enter unlawfully because there can be no doubt that he had no privilege or license to be on the premises. Even if he did not enter with the specific intent to commit a crime, it is beyond dispute that after shooting Knott, he unlawfully remained on the premises with the intent to commit the crime of assaulting Ward. Appellant's theory of the event, even if believed by the jury, fails to refute the Commonwealth's proof that he was unlawfully on the premises, and he formed the requisite intent to commit a crime as he remained there to shoot Ward. See McCarthy v. Commonwealth, 867 S.W.2d 469 (Ky. 1993) (a defendant may be convicted of burglary even if he did not initially have the requisite intent to commit a crime as he entered the dwelling, but the intent was subsequently formed). As such, the trial court did not abuse its discretion by denying Appellant's request for an instruction on first degree criminal trespass.
Overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). --------
V. PRIOR BAD ACTS EVIDENCE WAS HARMLESS
Lastly, Appellant contends that the trial court erred by permitting the Commonwealth to introduce Ward's testimony describing the occasion, when Appellant broke the tail light of her vehicle, and other instances reflecting upon Appellant's possessiveness and jealousy concerning Ward. Ward's testimony further described Appellant as an extremely possessive man who became agitated if she dressed in a manner not to his liking, talked to the wrong person, or took a work break at the wrong time.
As noted above, Appellant and Ward met at a park to discuss her son's medical condition. When Ward informed Appellant that she had also discussed the problem with her ex-husband, Appellant became angry, and his anger was punctuated by the smashing of the tail light on her car. Appellant objected to the testimony about the tail light incident because the Commonwealth had not given notice of its intent to introduce the evidence as required by KRE 404(c). The trial court overruled the objection, noting that defense counsel had alluded in her opening statement to the nature of the couple's relationship and that the breaking of the tail light was admissible as recent violence against Ward, under KRE 404(b)(2).
The general rule is that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]" KRE 404(a). As applied here, Appellant's trait for engaging in violent conduct, as evidenced by his breaking of Ward's tail light, would not otherwise have been admissible for the purpose of proving that he acted in conformity with that trait a few weeks later, on the occasion of the shootings. However, KRE 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or"We have consistently observed that KRE 404(b) is 'exclusionary in nature,' and 'any exceptions to the general rule that evidence of prior bad acts is inadmissible should be 'closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.'"' Graves v. Commonwealth, 384 S.W.3d 144, 147-48 (Ky. 2012) (citing Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982))). Further, we review a trial court's ruling concerning the admission of prior bad acts evidence under the abuse of discretion standard. Berryman v. Commonwealth, 237 S.W.3d 175, 179 (Ky. 2007) (trial court's decision to admit or exclude evidence should only be reversed if it abused its discretion).
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
Under the circumstances of this case we agree with the trial court that the evidence was admissible as background to the couple's relationship. Evidence of prior violence by a defendant against the victim is generally admissible, particularly when, as here, the prior acts were close in time. Driver v. Commonwealth, 361 S.W.3d 877, 884 (Ky. 2012). As we summarized in that case:
"It has long been a rule in this jurisdiction that threats against the victim of a crime are probative of the defendant's motive and intent to commit the crime[.]" Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004) (citing Richie v. Commonwealth, 242 S.W.2d 1000, 1004 (Ky. 1951)); see also Davis v. Commonwealth, 147 S.W.3d
709, 722 (Ky. 2004) ("[g]enerally, evidence of prior threats and animosity of the defendant against the victim is admissible as evidence of . . . intent."); Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008) ("As we have definitively held, 'evidence of similar acts perpetrated against the same victim are almost always admissible . . . .'").
Id. at 884 (footnotes omitted).
As noted by the trial court, the events were interlinked with the overall narrative of the relevant facts in this case and consequently were admissible under KRE 404(b)(2).
The failure of the Commonwealth to give advance notice of its intent to use prior bad acts evidence was error, but we are satisfied that the error was harmless. Overwhelming evidence established Appellant's guilt. The marginally-negative reflection cast upon Appellant by his earlier bad acts, when compared to the heinous crimes he committed against Ward and Knott, had negligible effect. It is inconceivable under the totality of the evidence that the jury's verdict was substantially swayed by the evidence of Appellant's prior conduct. Winstead v. Commonwealth, 282 S.W.3d 678 (Ky. 2009).
VI. CONCLUSION
For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed.
All sitting. All concur. COUNSEL FOR APPELLANT: Steven Jared Buck
Assistant Public Advocate COUNSEL FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Micah Brandon Roberts
Assistant Attorney General