Opinion
NO. 2019-CA-000352-MR
05-01-2020
VIRGIL CHAPMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 16-CR-00067 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. CLAYTON, CHIEF JUDGE: Virgil Chapman appeals from a judgment of the Russell Circuit Court after a jury convicted him of four counts of wanton endangerment in the first degree, three counts of endangering the welfare of a minor, and one count of assault in the fourth degree. Chapman argues he was entitled to a jury instruction on the lesser-included offense of wanton endangerment in the second degree and a directed verdict on the charges of endangering the welfare of a minor. Having reviewed the record and the applicable law, we affirm.
Chapman and his wife, Cora, lived in a rental home in rural Kentucky with their three children, who were ten, eight, and seven years of age. Chapman is a cancer survivor who uses a feeding tube to stay hydrated and nourished. Cora worked to support the family. On March 31, 2016, Chapman was not feeling well and was spitting up blood, so Cora took the children to work with her. When they arrived home that evening, the house was locked up and the four-wheeler was missing. Because Cora was worried about Chapman being out in bad weather, she and the children drove around looking for him and asked a neighbor to look for him as well. When they got back to the house, Chapman and the four-wheeler had returned. After she made dinner for the children and put them to bed, Cora realized she had forgotten her timesheet at work and went to retrieve it to avoid any delay in her paycheck. When she left, Chapman was sitting on the couch watching TV and behaving normally.
According to Cora, she returned 25 to 30 minutes later and found Chapman asleep on the couch with his pants and underwear down, soaked in urine. When she woke him to clean up the mess, he was hostile, aggressive, and belligerent. He cursed at Cora and denied urinating on himself. She tried to calm him down but he continued to curse at her and told her to get the f*** out of the house. He stood up and pushed her down into a chair, saying, "F*** you bitch, get your s*** and get out." Cora repeatedly told him she had nowhere to go but he said he didn't care but she wasn't "taking the f***ing kids." When she tried to get her keys, Chapman grabbed her by the throat and choked her. She put her foot into his stomach, avoiding his feeding tube, in an effort to push him away and get to the door. She told him she was leaving and he responded that he would make her go.
He headed towards the bedroom where five guns, including a 30/30 rifle and a 12-gauge shotgun, were stored in a cabinet. Cora grabbed Chapman from behind to stop him from getting to the guns. He threw her backwards and they fell over onto the couch. Chapman grabbed Cora by the hair and began jerking her head and threatening to kill her. She screamed and the children came out of the bedroom. One of them was able to help Cora get away from Chapman. She told the children to get back into their room and she ran from the house. As she was pulling away, she called 911. She told the operator Chapman was drunk and had told her if she called the law and the law came up there, there would be problems. She also told the operator Chapman was not in his right mind and explained that their place had burned about a year ago and he had been having a really hard time and she had been trying to get him to go talk to somebody. Cora testified at trial that she heard both a "boom" as she left the house and a shot as she drove out of the end of the holler. She drove to a nearby storage shed facility about one or two miles up the road to wait for the police.
Kentucky State Police officers Billy Begley and John Barnett and Russell County Sheriff's deputies Nick Bertram and Randal Burton met Cora at the storage facility. The officers heard gunshots while at the storage building. After "staging up," the officers drove to the Chapman residence in three vehicles. The sheriff's deputies were in separate marked cars and Begley rode with Sergeant Barnett in an unmarked car. None of the vehicles used their blue lights or sirens, but they all had their headlights on.
When the officers arrived at the Chapman residence, which was in a dark, isolated area, they parked and got out down beside their cars because shots were being fired. Begley heard at least two shots ricochet from tree limbs overhanging the area in which the cars were parked. A round threw up gravel on Deputy Bertram and the vehicles, although it caused no damage. The officers could not state exactly how many shots were fired, but they agreed they heard shots when they were at the storage building with Cora and that gunshots began striking near them and their cruisers as soon as they pulled up to the Chapman residence.
Sergeant Barnett shouted, "State Police, Mr. Chapman, Mr. Chapman, come out with your hands up, State Police," several times. At that point the shooting stopped. Because they were unaware of the location of the shooter and the visibility was poor, the police remained sheltered for some time among the trees beside their cruisers. They called for backup and when more officers arrived, they entered the Chapman residence and removed the children who were returned to their mother. At least one of the children was asleep when the officers entered.
The police searched the entire area and were present for almost four hours. They found no sign that another individual besides Chapman was present in the vicinity. Near the back deck of a nearby cabin under construction, Begley found the 12-gauge shotgun and a 30/30 rifle identified by Cora as belonging to her, lying in a tree. The guns were loaded. The back deck of the residence pointed to the Chapman residence. Begley did not see any target practice area set up around the cabin. He did see a 30/30 casing on the deck of the cabin and also found spent shell casings behind the Chapman residence.
The police had cleared the house at 2:10 a.m. but did not locate Chapman until approximately 4:00 a.m. Trooper Begley asked why he had shot at them and Chapman replied he did not know they were the police. He further stated he "wasn't ready to come out" and that he had "fallen asleep on a rock near one of the residences out there."
Several days later, Chapman gave a recorded statement to Trooper Begley. He stated he went four-wheeling and met a man who identified himself as a caretaker for the house. They sat, talked, and drank together for a while. The man told Chapman he wanted to sell his truck. Chapman knew they needed a new truck but told the man he had to go home and ask his wife. He claimed Cora was the one who became physically abusive, holding him on the floor and not letting him go. He said he had places that proved she hurt him, that she was twice his size, and he could not get her off him. When she left, he followed on the four-wheeler to stop her from leaving. He stopped at a neighbor's house to ask them to help find her and he asked the landlord to go sit with the children while he searched for Cora.
Chapman drove the four-wheeler to the cabin and threw the guns off the four-wheeler. He walked across the road, sat on a rock, and passed out. He told Trooper Begley he had not had whisky in years and with all his medications he just felt "knocked out." When he woke up, he saw all the lights and searchlights in the driveway, so he walked out with his hands up. When he was asked about the first officers to arrive, Chapman said he did not see the units. He denied shooting guns at the officers that night and said he had been target-shooting with those weapons the day before. He did say he fired a gun when Cora left, but back at the targets, not down the driveway.
Chapman was convicted of four counts of wanton endangerment in the first degree, one count for each of the four officers present on the driveway, Trooper Begley, Sergeant Barnett, Deputy Burton, and Deputy Bertram. He was convicted of one count of assault in the fourth degree against Cora. Finally, he was convicted of three counts of endangering the welfare of a minor, one for each of the three children. He was sentenced in accordance with the jury's recommendation of three years for each count of wanton endangerment in the first degree, running consecutively for a total of twelve years, and twelve months on each of the misdemeanors. This appeal by Chapman followed.
Chapman argues the trial court erred in denying his requested jury instruction of wanton endangerment in the second degree as a lesser-included offense of wanton endangerment in the first degree.
"Due process requires a lesser-included offense instruction '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, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.'" Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)).
"We review the trial court's rulings with respect to jury instructions for abuse of discretion." Id. (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) (citations omitted).
"The differences between first- and second-degree wanton endangerment are the mental state and degree of danger created." Swan v. Commonwealth, 384 S.W.3d 77, 102-03 (Ky. 2012), as corrected (Sept. 11, 2012), as modified on denial of reh'g (Dec. 20, 2012). A person is guilty of wanton endangerment in the first degree "when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 508.060(1). By contrast, a person is guilty of wanton endangerment in the second degree "when he wantonly engages in conduct which creates a substantial danger of physical injury to another person." KRS 508.070(1).
Kentucky Revised Statutes. --------
Thus, "[a]s to the mental state, both crimes require wanton behavior, but first-degree also requires circumstances manifesting extreme indifference to the value of human life, which has been described as aggravated wantonness." Swan, 384 S.W.3d at 102 (internal quotation marks and citation omitted). "As to the danger created, first-degree requires a substantial danger of death or serious physical injury, whereas second-degree requires only a substantial danger of physical injury." Id.
The Kentucky Supreme Court has cited the following example to illustrate the distinction between the two degrees of the crime: aimlessly firing a gun in public would be the second-degree crime whereas "[f]iring a weapon in the immediate vicinity of others is the prototype of first degree wanton endangerment. This would include the firing of weapons into occupied vehicles or buildings." Id. (quoting ROBERT G. LAWSON & WILLIAM H. FORTUNE, KENTUCKY CRIMINAL LAW § 9-4(b)(2), at 388 n.142 (1998) (citations omitted)).
Chapman argues that the evidence supported an instruction on second-degree wanton endangerment. He points to the following facts: the incident occurred late at night when it was dark and there was limited visibility; the police officers drove up with only normal headlights on, no blue lights or sirens; and the officers never saw who was shooting at them or saw anyone taking aim at them. He argues that, at most, he was simply outside shooting in the woods while possibly intoxicated, which would support a finding of the lower level of wantonness.
But there was scant evidence that would support this theory. In his initial statement to police, Chapman did not deny shooting at them but denied knowing they were police. In his later statement, he denied shooting whatsoever except for firing a shot as Cora was leaving and target-shooting the day before. There was no evidence of another shooter. Although the police had not activated their lights or sirens, their headlights would have been clearly visible in the darkness and the shooter would have seen them. Firing a gun into a group of cars which have just arrived with their headlights on and presumably containing drivers and passengers is the essence of first-degree wanton endangerment. We agree with the Commonwealth that no evidence was introduced at trial which could lead the jury reasonably to conclude that Chapman was out in the woods shooting randomly when the police arrived and that the bullets happened to strike the branches above the police cars and the gravel on the ground around them. "While reasonable inferences are permissible, a jury verdict must be based on something other than speculation, supposition or surmise." Huffman v. SS. Mary and Elizabeth Hospital, 475 S.W.2d 631, 633 (Ky. 1972). "The duty to instruct on any lesser included offenses supported by the evidence does not require an instruction on a theory with no evidentiary foundation. The jury is required to decide a criminal case on the evidence as presented or reasonably deducible therefrom, not on imaginary scenarios." Thompkins v. Commonwealth, 54 S.W.3d 147, 151 (Ky. 2001) (citation omitted).
Next, Chapman argues that he was entitled to a directed verdict on the three charges of endangering the welfare of a minor, relating to his children. The statute provides that: "A parent, guardian or other person legally charged with the care or custody of a minor is guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child." KRS 530.060(1).
At trial, defense counsel argued, in reliance on the Commentary following KRS 530.060, that a conviction of endangerment of a minor requires a prior judicial finding of abuse, neglect, or dependency and delinquency of the child. The Commentary states:
KRS 530.060 imposes a duty on a parent, guardian or other person legally charged with the care or custody of a minor to exercise reasonable diligence in the control of the minor to prevent him from becoming neglected, dependent or delinquent. The duty is imposed only on a parent, guardian or other person legally charged with the care or custody of the minor, not on all persons generally. In order to sustain a conviction under KRS 530.060 there must be a prior judicial finding of neglect, dependency or delinquency of the child.
KRS 500.100 states that the Commentary accompanying the Penal Code "may be used as an aid in construing" the provisions of the Code. The Commentary relied upon by Chapman is specifically designated as the 1974 Kentucky Crime Commission/LRC Commentary. The historical and statutory notes following KRS 500.100 state that these notes "were prepared AFTER enactment of the Penal Code and are NOT 'Commentary accompanying this Code' referred to in KRS 500.100." Thus, the specific Commentary relied upon by Chapman is not to be used as an aid in construing the statute.
The jury instructions defined "neglect" to mean "acts or omissions by a parent, guardian or person responsible for the care of a child that results in harm to a child or presents a likelihood of harm, and the actors or omissions are not due solely to the lack of financial means of the child's parents or other custodian." This definition closely tracks the definition of "abused or neglected child" found in KRS 600.020(1)(a), which includes a child "whose health or welfare is harmed or threatened with harm when . . . [h]is or her parent, . . . [i]nflicts or allows to be inflicted upon the child physical or emotional injury . . . by other than accidental means; [or] [c]reates or allows to be created a risk of physical or emotional injury . . . by other than accidental means[.]"
Chapman argues that the Commonwealth did not present sufficient evidence to support a "likelihood of harm" being inflicted on the children to substantiate the "neglect" prong of the statute.
In considering 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 reserving to 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). "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." Id. (citation omitted). The evidence presented by the prosecution must be more than a mere scintilla. Id. at 187-88.
Chapman argues that the children were in their home, likely asleep, during the critical period and for most of that time, the home was being watched by the police. It is undisputed the children were in the home during the violent altercation between Cora and Chapman, long before the arrival of the police. Cora testified that one of the children came to her assistance to pull Chapman away from her and that she left because he was heading to the cabinet where the guns were kept. According to Chapman, after his altercation with Cora, he went to his landlord and asked him to watch the children while he searched for her. There is no additional evidence to support this statement, and it would not be unreasonable for the jury, in assessing the credibility of Chapman's statement, to conclude the children were actually left unattended between the time Chapman left the house and the entry of the police. According to Cora, she heard at least one shot when she fled the residence. The police heard multiple shots during the time they were meeting with Cora at the storage facility. The fact that one of the children was asleep and that the police were present outside the residence during part of the time shots were being fired does not mean the children were not in any danger. It is unclear how the presence of the police outside the house could protect young children who were unsupervised. When the evidence is viewed as a whole, it was not unreasonable for the jury to find the children were at considerable risk of harm due to the actions or inactions of Chapman.
For the foregoing reasons, the judgment of the Russell Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Molly Mattingly
Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky