Opinion
NO. 2012-CA-000901-MR
03-20-2015
BILLY TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 11-CR-00069
OPINION
REVERSING AND REMANDING
BEFORE: KRAMER, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Billy Taylor appeals from a judgment entered by the Russell Circuit Court convicting him of second-degree assault, resisting arrest, first- degree disorderly conduct, and third-degree terroristic threatening, and sentencing him to a term of six years. After careful review, we reverse and remand.
Kentucky Revised Statutes (KRS) § 508.020, Class C felony.
KRS § 520.090, Class A misdemeanor.
KRS § 525.055, Class A misdemeanor.
KRS § 508.080, Class A misdemeanor.
On April 20, 2011, Taylor and his wife, Sarah Taylor, spent the day at the home of a friend, Shane Mullins, where Taylor and Mullins were consuming alcohol. Taylor and Sarah returned to their home, where Taylor fell asleep and woke up at approximately 10:15 p.m. Noticing Sarah and the car were missing, Taylor proceeded to search for her on foot. The accounts of what transpired next vary. Sarah testified she left their house to purchase cigarettes, and found Taylor walking down the road as she drove home. After Taylor entered the car, an argument ensued. Sarah alleged Taylor pulled her out of the car and began hitting her. They returned to the vehicle and drove home. When they arrived, Taylor grabbed a rubber mallet and struck the windshield of the car, shattering it. Sarah alleged when she attempted to exit the vehicle, Taylor closed the door on her leg, and repeatedly struck her with the mallet about the face and arms. Sarah testified she ran into the house, called 911, and hid outside until the police arrived.
In contrast, Taylor alleged an argument ensued during the car ride home after Sarah told him she was having an affair with Mullins. Taylor admitted striking Sarah with his hands when they returned home, but denied striking her with a rubber mallet.
Taylor hid when the police arrived. After an officer located Taylor inside a truck, Taylor escaped and ran into nearby woods. Eventually, a K-9 unit arrived and located Taylor within the woods. He resisted arrest and was ultimately subdued with a taser.
A jury trial resulted in Taylor's conviction. He appeals as a matter of right.
On appeal, Taylor argues the jury's verdict should be set aside for several reasons. First, he alleges the trial court's jury instruction on second-degree assault was erroneous. The instruction required jurors to find 1) Taylor intentionally caused physical injury to Sarah by hitting her with his fists and/or a rubber mallet, and 2) his fists and/or rubber mallet were a dangerous instrument. The definition given to the jury allowed them to find a part of the human body was a dangerous instrument "when a physical injury is a direct result of the use of that part of the human body." Taylor argues the instruction was erroneous because the statutory definition of a dangerous instrument states a part of the human body—in this case Taylor's fists—can only be a dangerous instrument when it causes serious physical injury.
KRS 508.020(b) provides a person is guilty of second-degree assault when he "intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument." KRS 500.080(3) defines a dangerous instrument as:
[A]ny instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury[.] (Emphasis added)."Serious physical injury" is defined 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." KRS 500.080(15).
Taylor claims the instruction given to the jury omitted the material term "serious physical injury," thereby creating reversible error. Arguing the Commonwealth never put forth evidence showing Sarah sustained serious injuries, Taylor claims the instruction impermissibly allowed the jury to convict him of second-degree assault by hitting Sarah with his fists but not causing serious physical injury.
Agreeing it did not prove serious physical injury, the Commonwealth concedes omission of the term "serious physical injury" from the jury instruction created reversible error. The Commonwealth asks that the case be remanded for a new trial because it sufficiently proved second-degree assault by establishing Taylor struck Sarah with the rubber mallet.
We agree with both Taylor and the Commonwealth. Omitting the material term "serious physical injury" from the jury instruction defining a dangerous instrument created reversible error. KRS 500.080(3) clearly requires a part of the human body to directly cause serious physical injury to fall within the definition of a "dangerous instrument," but the instruction did not require jurors to find a serious physical injury had occurred. Commonwealth v. Davidson, 277 S.W.3d 232, 234 (Ky. 2009). As a result of this instructional error, reversal is necessary.
Taylor claims retrial is barred because there was insufficient proof of second-degree assault. The proscription against double jeopardy—found in the Fifth Amendment to the United States Constitution and § 13 of the Kentucky Constitution—precludes retrial once the reviewing court has found the evidence legally insufficient to support the conviction. McGinnis v. Wine, 959 S.W.2d 437, 438 (Ky. 1998) (citing Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978)).
We distinguish the instant facts from Davidson, a similar case where our Supreme Court held retrial would result in double jeopardy. In Davidson, the Supreme Court considered a conviction for second-degree assault based on the theory that the defendant's fists were dangerous instruments. There was insufficient evidence to support a finding that Davidson's fists caused serious physical injury. However, the Commonwealth in Davidson did not present an alternative theory of second-degree assault. As such, the Supreme Court held retrial was barred and the lack of evidence to support a finding of second-degree assault was the equivalent of an acquittal for double jeopardy purposes.
Unlike Davidson, in the instant case, the Commonwealth presented evidence Taylor committed second-degree assault by striking Sarah with a mallet —an act that does not require a finding of serious physical injury to be considered a dangerous instrument. See KRS 508.020(b) and KRS 500.080(3). As such, we reverse due to the flawed instruction but hold retrial for second-degree assault is permitted on the theory advanced by the Commonwealth —Taylor used a mallet to assault Sarah.
KRS 500.080(3) only requires an instrument—such as a rubber mallet—be capable of causing serious physical injury.
Taylor also argues the instruction given to the jury invited a non-unanimous verdict because it is impossible to determine how many jurors believed his fists were dangerous instruments, and how many believed a rubber mallet was. This potential error will be remedied on remand with a correction of the flawed instruction.
Even still, Taylor argues retrial is barred because the prosecutor presented insufficient evidence Taylor hit Sarah with the mallet. Taylor alleges it is impossible for a reasonable jury to believe Sarah's testimony that Taylor hit her with a mallet because she did not sustain significant injuries. We disagree. Contrary to Taylor's assertion, Sarah testified Taylor repeatedly struck her with a mallet on her face, arms, and head. Because credibility of witnesses and the weight to be given to sworn testimony are questions for the jury to decide, we will not evaluate whether that testimony is believable in light of the severity of Sarah's injuries, or lack thereof. Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999).
Although our decision to reverse and remand renders Taylor's remaining allegations of error moot, we will address them because they are likely to recur if the case is retried. See Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky. 1999). First, Taylor argues the trial court erred by admitting evidence he assaulted Sarah on March 24, 2011, resulting in a misdemeanor conviction. As a result of the conviction, Taylor served fifteen days in jail. Prior to trial, the Commonwealth filed a notice of intent to introduce evidence of this assault and conviction. Arguing this incident was precipitated by Sarah's discussions with Taylor regarding her relationship with Mullins, the Commonwealth claimed evidence of this incident was admissible because it was inextricably intertwined with Taylor's current charges. The Commonwealth claimed Taylor and Sarah continued to argue about Mullins after he was released from jail, culminating in the incident on April 20, 2011. The trial court permitted the Commonwealth to present evidence related to the March 24, 2011 assault.
Sarah testified Taylor became angry on March 24, 2011, after learning Mullins had feelings for her. She testified Taylor threw her to the floor, kicked her, and "tore up" the house. She testified police took "the usual" ten to fifteen minutes to arrive after being called. Taylor was arrested, remaining in jail for ten days. While Taylor was in jail, Sarah told Taylor she was ending their marriage, and began her relationship with Mullins. Although Taylor was aware of her relationship with Mullins after he was released from jail, Sarah testified he snapped on April 20, 2011, after asking her if she went to see Mullins that day.
Deputy Clete Mackinish also testified about the incident on March 24, 2011. Upon arriving at the scene, Deputy Mackinish saw Sarah in the living room with a bloody, swollen lip, and a mark on her face. After Sarah indicated Taylor was in the bedroom, Deputy Mackinish yelled for Taylor to come out before proceeding into the bedroom. Taylor came out on his own accord and was handcuffed.
On appeal, Taylor argues evidence of the misdemeanor assault was inadmissible evidence of a prior bad act. The Commonwealth argues the assault was admissible because it was "inextricably intertwined" with the April 20, 2011 incident. KRE 404(b) provides:
Kentucky Rules of Evidence.
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:Our Supreme Court has held the key to understanding the "inextricably intertwined" exception is the word "inextricably." Funk v. Commonwealth, 842 S.W.2d 476, 480 (Ky. 1992). "The exception relates only to evidence that must come in because it 'is so interwoven with evidence of the crime charged that its introduction is unavoidable.'" Id. (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.20, at 37 (2d ed. Michie 1984)).
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
2. If so inextricably intertwined with other evidence essential to the case that separation of the two could not be accomplished without serious adverse effect on the offering party.
Alleging the events of the first assault were inextricably intertwined with the second assault, the Commonwealth argues the first assault was precipitated by Sarah's discussion with Taylor regarding Mullins. Further, the Commonwealth claims Taylor's imprisonment is interwoven with the evidence because it allowed Sarah and Mullins to begin their relationship. In addition, the Commonwealth claims testimony regarding the first assault demonstrated Taylor knew about the relationship between Sarah and Mullins weeks before the incident on April 20, 2011. The Commonwealth claims exclusion would have seriously and adversely affected its ability to present the case to the jury. Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky. App. 1994).
In his reply, Taylor concedes the relationship between Sarah and Mullins played a part in the assault on April 20, 2011, but argues the story could have been told without reference to the details of the prior assault. Taylor claims the jury could have had a complete understanding of why Taylor was jealous of Mullins solely through evidence that Sarah and Taylor's marriage was troubled, and Sarah wanted to divorce Taylor and begin a relationship with Mullins.
We hold the trial court did not abuse its discretion in admitting evidence of the prior assault. As the relationship between Sarah and Mullins is contextually significant to the incident on April 20, 2011, details such as when the relationship began, when Taylor first learned of the relationship, and Taylor's reaction upon first learning of the relationship, provided important background information. "The rule [allowing inextricably intertwined evidence] is intended to be flexible enough to permit the prosecution to present a complete, unfragmented, unartificial picture of the crime committed by the defendant, including necessary context, background and perspective." Norton, 890 S.W.2d at 638. While evidence of the March 21, 2011 incident is admissible, we caution that evidence of other bad acts beyond the incident may exceed the scope of admissibility.
Taylor alleged the evidence presented at trial alluded to other bad acts because Sarah testified the police took "the usual 10-15 minutes," and testified Mullins "had seen the abuse before."
Next, Taylor argues the trial court erroneously denied his request to give the jury a voluntary intoxication instruction. "A voluntary intoxication instruction is justified . . . when there is evidence that the defendant was so drunk that he did not know what he was doing, or when the intoxication [negates] the existence of an element of the offense." Nichols v. Commonwealth, 142 S.W.3d 683, 688 (Ky. 2004) (quoting Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002)).
Contrary to Taylor's argument, the evidence presented at trial demonstrates he remembered and was aware of what he was doing during the incident. Testifying to the events surrounding the assault, Taylor recounted walking several miles to Mullins' house. He recalled Sarah's clothing and appearance, Sarah's statements during their argument, and testified he hit Sarah with his fists. As Taylor was clearly aware of his actions, the trial court properly denied Taylor's request for a voluntary intoxication instruction.
Taylor also argues the second-degree assault under extreme emotional disturbance (EED) instruction was erroneous because its wording was confusing. The instruction asked the jury to find Taylor guilty of second-degree assault under EED "if you do not find the defendant guilty under [the second degree assault instruction]," but also "if you believe . . . the defendant would be guilty [under the second degree assault instruction] but you further believe . . . he was acting under the influence of an [EED]." Taylor argues this wording differs from the model instruction contained in Cooper and Cetrulo, Kentucky Instructions to Juries, Criminal § 3.56, which does not include the first sentence of the instruction given to the jury. In addition, Taylor argues he was entitled to an EED instruction relating to fourth-degree assault, although he did not ask for one.
The parties dispute whether this issue is properly preserved for review. The Commonwealth argues Taylor submitted this instruction, thereby inviting and waiving any error related to it; a position supported by our review of the record. Graves v. Commonwealth, 384 S.W.3d 144, 152 (Ky. 2012). During a conference on jury instructions, the Commonwealth's attorney states "I've got instructions done that are for assault second . . . I did not do anything on EED." Taylor's attorney responds, "We've got the EED." In his reply brief, Taylor claims the instruction given to the jury was not the instruction he prepared. However, he does not cite the record to support his claim. Regardless, for purposes of our opinion, whether this error is properly preserved for appellate review is unimportant, as we address this issue solely to provide guidance to the trial court on remand.
We agree the wording of the instruction given to the jury is confusing, as it could be perceived as internally inconsistent. This potential confusion can easily be remedied on remand by using language mirroring the model instruction. Furthermore, if supported by the evidence, Taylor can also ask for a fourth-degree assault under EED instruction on remand.
Taylor also argues he was entitled to a directed verdict of acquittal on second-degree assault because his fists could not be dangerous instruments, as they caused no serious physical injury. However, Sarah's testimony that Taylor struck her with a rubber mallet was sufficient to support a second-degree assault conviction and create a question of fact for the jury. Smith, 5 S.W.3d at 129. As such, a directed verdict was not appropriate.
Next, Taylor asserts the trial court erroneously permitted Deputy Kenny Brown to testify to out-of-court statements made by Sarah when he arrived at the scene of the incident, violating the hearsay rule. See KRE 801(c) and 802. Prior to trial, the Commonwealth sought to introduce this testimony, arguing Sarah's statements were admissible as excited utterances. Objecting, Taylor argued the statements were not excited utterances, would unfairly bolster Sarah's testimony, and were unnecessary because Sarah would testify to what she said to Deputy Brown. The trial court found this testimony to be inadmissible, because Sarah was available to testify to her statements.
Despite the trial court's ruling, Deputy Brown testified at trial that when he arrived at the scene, Sarah emerged from the woods across from her residence, telling him Taylor had hit her with his fists, hands, and a rubber mallet. Taylor's counsel objected to this testimony. During a bench conference, the trial court reversed its earlier position and allowed this testimony to come in because Sarah had already testified she had made these statements.
On appeal, Taylor argues the trial court erroneously admitted Sarah's hearsay statements, allowing Deputy Brown to bolster Sarah's testimony. Taylor also argues the Commonwealth did not lay a proper foundation to admit these statements as excited utterances.
Our review of the record indicates the trial court did not admit Deputy Brown's statements as excited utterances. Rather, in admitting the statements, the trial court found Sarah's availability as a witness qualified as an exception to the rule against hearsay. Contrary to the trial court's ruling, there is no exception allowing the admission of hearsay evidence if the declarant is available to testify. See KRE 803. However, while Deputy Brown's testimony was inadmissible for the reason cited by the trial court, the testimony may have been admissible as excited utterances, and we may affirm the trial court for reaching the correct result, albeit for the wrong reasons. Newman v. Newman, 451 S.W.2d 417, 420 (Ky. 1970).
KRE 803(2)—the excited utterance exception—reads:
Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.Our courts have identified eight relevant factors to consider in determining whether a statement qualifies as an excited utterance:
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of
the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998).
Applying these factors to statements Sarah made to Deputy Brown suggests they were excited utterances. The statements occurred outside Sarah's house—the scene of the assault. Sarah was clearly stressed and excited from the incident as she was panicked and sobbing uncontrollably. Neither Sarah nor Deputy Brown indicated the statements were made in response to a question. Furthermore, her statements were not self-serving as she had nothing to gain from fabricating them.
One factor unclear from the record is the amount of time that lapsed between the assault and Sarah's statements. While the Commonwealth argues the statements were made minutes after the assault, it offers no citation in support of this fact. Sarah testified the time lapse "seemed like forever but probably [was] not that long." The police record provides the time of the incident and arrest, but does not indicate the time Deputy Brown arrived at Sarah's house. If only a few minutes lapsed as the Commonwealth states, then the incident would have been fresh and Sarah still under its immediate stress, with little opportunity to fabricate.
On remand, if the facts align with the excited utterance factors outlined by our courts, then a trial court could reasonably exercise its discretion and find Sarah's statements to Deputy Brown qualified as excited utterances. Of course, this factual determination would depend on the evidence presented during trial on remand.
Finally, Taylor argues the trial court erred in assessing court costs totaling $245.00. Taylor argues the court should have held a hearing to determine whether Taylor was a "poor person" under KRS 23A.205. After Taylor was sentenced, our Supreme Court rendered Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012), holding imposition of court costs is improper "without some reasonable basis." Id. at 930. Our review of the records indicates no such inquiry was conducted in this matter. On remand, in the event Taylor is convicted, the trial court should conduct an inquiry into Taylor's ability to pay pursuant to Maynes.
KRS 23A.205(2) provides:
The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future.
Based on the foregoing, we reverse and remand for a new trial.
KRAMER, JUDGE, CONCURS.
STUMBO, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
STUMBO, JUDGE, DISSENTING IN PART: I dissent as to the issue of the misdemeanor assault and conviction. I believe the trial court erred in admitting this into evidence. I would affirm in all other respects. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky