Opinion
NO. 2014-CA-000860-MR
02-12-2016
RONNIE LIVERS APPELLANT v. JAMES LARRY BROWN APPELLEE
BRIEFS FOR APPELLANT: Allen P. Dodd, III Jacob W. Crouse Louisville, Kentucky BRIEF FOR APPELLEE: Kenton R. Smith Brandenburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MEADE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 12-CI-00224 OPINION
AFFIRMING BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Ronnie Livers appeals from a judgment following a jury verdict awarding him zero damages on his claim for assault and battery against James Larry Brown. Ronnie argues the trial court abused its discretion when it permitted Larry to introduce evidence regarding hunting etiquette. He also argues Larry's counterclaims were improperly submitted to the jury and the trial court erred when it refused to allow him to introduce evidence that Larry was prohibited from being in possession of a firearm. After review of the record, we conclude there was no reversible error and affirm.
Ronnie and Larry are married to each other's sisters and both are in their seventies. Through inheritance or purchase, they own or control over 1,700 acres of hunting ground in Meade County as tenants in common with other family members. Both men and other family members regularly hunt on the property.
On December 11, 2012, Ronnie and Larry engaged in a verbal exchange regarding the use of a food plot set out by Larry and his son, Troy, to attract wildlife. Following the disagreement, Ronnie left and hunted elsewhere.
The following day, Ronnie returned to the food plot on an ATV and set up his own hunting blind on its edge. Larry was waiting in his pickup truck for Ronnie to arrive at the baited plot for the purpose of stopping Ronnie from hunting at that location. Upon seeing Ronnie, Larry repeatedly sounded the panic alarm on his pickup truck to scare away deer and cause Ronnie to leave.
When Ronnie did not leave, Larry exited his truck and carrying a muzzleloader, approached Ronnie who was seated in his blind. A verbal altercation ensued between the two men.
Larry testified that Ronnie repeatedly threatened to kill him. Ronnie denied he made such threats but admitted to calling Larry unflattering names and challenging Larry to fight. Larry's and Ronnie's details of the physical altercation differed.
Ronnie testified while he was in his hunting blind, Larry repeatedly struck him using his muzzleloader rifle. After being struck three times, Ronnie broke through the side of his blind and subdued Larry. After Ronnie allowed Larry to stand, Larry took the key to Ronnie's ATV and exited the field in his pickup truck.
Larry gave a different factual version. Larry testified that after Ronnie did not leave, he walked toward the blind carrying a disarmed muzzleloader. Armed with a loaded gun, Ronnie threatened to kill Larry. As Ronnie stood to fight, Larry struck him with his muzzleloader. During the scuffle, Ronnie was able to take Larry's muzzleloader and repeatedly struck Larry with the weapon and Larry ran. Ronnie pursued Larry and, upon catching him, repeatedly struck him with the muzzleloader.
As a result of the beating, Ronnie suffered a broken wrist and head cuts. Larry's hands were lacerated and he suffered cracked ribs, bruising and abrasions.
Ronnie filed a complaint against Larry for assault and battery. Larry answered arguing his actions were justified as self-defense and counterclaimed for assault and battery menacing and terroristic threatening. In his answer to Larry's complaint, Ronnie asserted his actions were justified as self-defense.
During pretrial proceedings, it became apparent that Larry intended to produce evidence at trial that Ronnie did not follow "hunting etiquette" when he hunted on territory previously staked out, baited and scouted by Larry and Troy. Ronnie filed a motion in limine to exclude evidence of hunting etiquette on the basis that such evidence was irrelevant to assault and battery and was prejudicial evidence of his bad character. The trial court declined to rule on the motion until the evidence was sought to be introduced.
Ronnie also sought a ruling on whether he would be permitted to introduce evidence that in 1997, Larry entered guilty pleas to two counts of assault in the second degree and was prohibited from being in possession of a firearm as part of his pardon. The trial court ruled that such evidence was inadmissible.
The case was tried before a jury. As anticipated, much of the evidence concerned whether Ronnie or Larry was the aggressor. Various witnesses testified concerning the events that unfolded leading to the fight and on the day of the fight.
Additionally, Larry, Troy and Bruce Livers, Ronnie's brother, testified concerning the general custom among hunters to not impinge on another hunter's staked territory. Ronnie cites this Court to various portions of the testimony he finds objectionable as inadmissible character evidence. However, some of the testimony was objected to on the basis of hearsay and is not relevant to this appeal and some did not reference hunting etiquette at all. We have sifted through the testimony cited and summarized that most pertinent to this appeal.
Larry's son Troy testified regarding the unwritten custom of hunters on the family farm:
Q. About how many people hunt down there?
A. During deer season, 10 to 15 maybe.He testified it was unusual for another hunter to be in another hunter's blind and that in the fall of 2011, he found Ronnie sitting in his blind. Later, Troy was asked about Ronnie's hunting manners:
Q. And does everyone have their respective places to hunt?
A. Yeah. Pretty much. I mean, everybody knows kind of where everybody's going.
Q. And, for the most part do people respect each other's places?
A. Yes.
Q. And have you enjoyed a certain level of frustration with your uncle, Ron Livers, his hunting manners?Troy testified: "I know a lot of us have expressed frustration over the [Ronnie's] lack of etiquette."
A. Yes, sir.
Monica Livers Brown, Larry's wife, also testified that Ronnie did not follow hunting etiquette by moving his blind to the food plot set out by Larry and Troy. She testified: "I mean that is not good hunter etiquette. You have to respect, respect for yourself, respect for other hunters. You don't move in."
Larry testified that he and Troy established the food plot for the use of his grandchildren. He also testified he spent $753 to set out the food plot and that Ronnie did not financially contribute.
Bruce testified that all his brothers and sisters except for Ronnie respected the other's hunting spots.
Over Ronnie's objection, the trial court instructed the jury on Larry's counterclaims for menacing and terroristic threatening as well as assault and battery. The jury returned a unanimous verdict. The jury found Ronnie was liable for assault and battery, menacing and terroristic threatening and not entitled to self-defense because he used more force than necessary in protecting himself. It also found Larry committed assault and battery on Ronnie and he was not entitled to claim self-defense. The jury did not award damages to Ronnie or Larry.
The trial court entered its trial order and judgment in accordance with the jury's verdict. Only Ronnie appealed from the trial court's order and judgment.
Ronnie alleges the trial court's admission of testimony regarding hunting etiquette constitutes reversible error. Our review of alleged errors by the trial court in admitting or excluding is limited to a determination of whether the trial court abused its discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 581. Moreover, even if this high standard for reversal is met, reversal is not warranted absent prejudice caused by the erroneous admission of evidence. Kentucky Rules Civil Procedure (CR) 61.01 instructs as follows:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Pursuant to CR 61.01, even if there was error in the admission of the testimony cited, Ronnie would still be required to establish that he was prejudiced by its admission. Given that the jury awarded him zero damages, the prejudice prong for reversal cannot be met. Any error was harmless and does not warrant reversal.
Ronnie's two remaining arguments for reversing the jury's verdict are unpersuasive. He argues the trial court erroneously included in the jury instructions Larry's counterclaims of terroristic threatening and menacing, both of which were based on criminal statutes. He points out that while a criminal statute may be the basis for a claim of negligence per se, it may not be the basis for a separate cause of action. Whatever substantive merit his argument may have, it remains that the jury did not award Larry any damages on his counterclaims. Consequently, there could be no prejudice to Ronnie by the instructions on terroristic threatening and menacing. CR 61.01.
Ronnie's final argument is that the trial court erroneously precluded him from introducing evidence that Larry was prohibited from possessing a firearm because of a pardon granted after a 1997 felony conviction. Ronnie does not suggest how this conviction arising from a motor vehicle incident would be admissible under Kentucky Rules of Evidence (KRE) 404(b). While KRE 609(a) might permit its admission to impeach Larry's testimony, KRE 609(b) provides: "Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect." In Miller ex rel. Monticello Banking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 284 (Ky. 2004), the Court pointed out that:
[T]he KRE 609(b) balancing test is the exact inverse of the KRE 403 balancing test. Under KRE 403, relevant evidence is admissible unless its probative value is substantially outweighed by its prejudicial effect. Under KRE 609(b), the evidence is inadmissible unless its prejudicial effect is substantially outweighed by its probative value.Larry's 1997 felony conviction for assault was highly prejudicial in this civil assault case. We conclude that under the facts, the trial court did not abuse its discretion in denying its admission into evidence.
Ronnie and Larry had their case heard by a jury. Having heard the evidence, the jury believed both were at fault in perpetuating this family feud and declined to award to damages to Ronnie or Larry. We conclude the trial court did not commit any reversible error and the jury's verdict was in conformity with the evidence.
For the reasons stated, the trial court order and judgment of the Meade Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Allen P. Dodd, III
Jacob W. Crouse
Louisville, Kentucky BRIEF FOR APPELLEE: Kenton R. Smith
Brandenburg, Kentucky