Opinion
NO. 2017-CA-000226-MR
05-15-2020
Jeffrey FARMER, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEF FOR APPELLANT: Shannon Dupree, Assistant Public Advocate, Frankfort, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, Kentucky.
BRIEF FOR APPELLANT: Shannon Dupree, Assistant Public Advocate, Frankfort, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: LAMBERT, MAZE, AND K. THOMPSON, JUDGES.
OPINION
LAMBERT, JUDGE:
Jeffrey Farmer has directly appealed from the judgment of the Kenton Circuit Court convicting him of second-degree assault and sentencing him to ten years’ imprisonment. The Commonwealth concedes that there was insufficient proof to support this conviction. Therefore, we reverse the judgment.
Farmer was arrested by the Covington Police Department on October 29, 2015, after an incident at the home of Lona Rose that evening. She claimed that Farmer punched her in the face multiple times and stole jewelry from her. As a result, the Kenton County grand jury charged him with first-degree robbery pursuant to Kentucky Revised Statutes (KRS) 515.020 and later with first-degree assault pursuant to KRS 508.010. That charge was later amended to second-degree assault pursuant to KRS 508.020. Farmer entered a plea of not guilty and maintained that he had not injured Rose.
The matter was tried before a jury, where Rose testified that, in the attack, she had sustained blackened eyes, a broken nose and cheekbone, a cut on her mouth requiring stitches, an injury to her temporomandibular joints requiring surgery, and bruising to her neck. She could not eat solid food and was unable to wear her dentures for several days. However, the Commonwealth did not present any expert medical testimony related to the extent of Rose's injuries. The jury returned a not guilty verdict on the robbery charge and found Farmer guilty of second-degree assault. On January 9, 2017, the trial court entered a final judgment and sentenced Farmer to ten years’ imprisonment pursuant to the jury's recommendation. This appeal follows.
We shall first consider whether the trial court should have granted Farmer's motion for a directed verdict on the second-degree assault charge.
On 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.
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.
Perdue v. Commonwealth , 411 S.W.3d 786, 790 (Ky. App. 2013) (quoting Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky. 1991) ). "To defeat a directed verdict motion, the Commonwealth must only produce ‘more than a mere scintilla of evidence.’ " Lackey v. Commonwealth , 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham , 816 S.W.2d at 187 ).
KRS 508.020 sets forth the elements of second-degree assault in relevant part as follows:
(1) A person is guilty of assault in the second degree when:
(a) He intentionally causes serious physical injury to another person; or
(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.
KRS 500.080(3) defines a "dangerous instrument" as
any 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[.]
KRS 500.080(13) defines "physical injury" as "substantial physical pain or any impairment of physical condition[.]" And KRS 500.080(15) defines a "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."
In Commonwealth v. Davidson , 277 S.W.3d 232 (Ky. 2009), the Supreme Court of Kentucky considered the meaning of dangerous instrument as used in KRS 500.080(3). It held:
Based on the plain meaning of KRS 500.080(3), we agree with the Court of Appeals’ statutory interpretation that when the dangerous instrument in question is a part of the human body, the Commonwealth bears the burden of establishing that serious physical injury actually occurred as a direct result of the use of that part of the human body. Because there was insufficient evidence to support a finding that Davidson's fists caused serious physical injury to Williams, the Court of Appeals held the trial court erred by instructing the jury on second-degree assault based on the theory that Davidson's fists were dangerous instruments.
Id. at 234 (footnotes omitted).
There is no dispute that the Commonwealth was prosecuting Farmer under KRS 508.020(1)(b) and that it intended to prove that Farmer intentionally caused physical injury to Rose with his fist, which it argued was a dangerous instrument. In denying the motion for a directed verdict, the court held that the jury could reasonably find that there was physical injury, that it was intentionally caused based on the uncontradicted testimony of the witnesses, and that the part of the body (in other words, Farmer's fist) used to cause the injury can be considered a dangerous instrument. In discussing jury instructions, the court and the parties again discussed the dangerous instrument issue and whether, when a part of the human body is used, a serious physical injury is required. The prosecutor, in supporting the instruction for second-degree assault that was presented to the jury, stated his understanding of the law in relation to this case was that Farmer caused physical injury to Rose with his fists; that a fist can be considered a dangerous instrument because it can cause a serious physical injury; that if a fist is readily capable of causing a serious physical injury, it can be considered a dangerous instrument; and that a fist does not need to cause a serious physical injury to be a dangerous instrument.
Both Farmer and the Commonwealth agree that this is not a proper interpretation of KRS 500.080(3) based upon Davidson , supra. We agree. In order for Farmer to be convicted of second-degree assault under KRS 508.020(1)(b), the Commonwealth had to prove that Rose had sustained a physical injury through the use of a deadly weapon or a dangerous instrument. The Commonwealth argued that Farmer's fist was a dangerous instrument. But in order for a fist to be considered a dangerous instrument, it must directly cause a serious physical injury. Therefore, the Commonwealth in actuality had to establish that Rose sustained a serious physical injury as a direct result of the use of Farmer's fist in order to establish the elements of this offense. That a fist is readily capable of causing serious physical injury is not enough to establish the "dangerous instrument" element. Not only did the Commonwealth fail to introduce evidence that Rose had sustained a serious physical injury, but it did not introduce any medical expert proof to establish this. And the prosecutor admitted that Rose had only sustained a physical injury, not a serious physical injury, when he argued before the court, meaning that there was not sufficient evidence to support a conviction. Therefore, we hold that Farmer was entitled to a directed verdict of acquittal for the second-degree assault charge as "it would be clearly unreasonable for a jury to find guilt," Perdue , 411 S.W.3d at 790, and that the trial court erred as a matter of law in permitting this charge to be decided by the jury.
Likewise, the trial court did not properly instruct the jury on the second-degree assault charge.
Our review of alleged errors in jury instructions differs, depending upon the type of error alleged. When the error arises from giving an unwarranted instruction or failing to give a warranted instruction, we review the decision for abuse of discretion. Sargent v. Shaffer , 467 S.W.3d 198, 203 (Ky. 2015). However, when the error hinges on "whether the text of the instruction accurately presented the applicable legal theory," we review the "content of a jury instruction" de novo. Id. at 204.
Commonwealth v. Caudill , 540 S.W.3d 364, 366-67 (Ky. 2018). Because the issue in this case concerns the content of the instructions, we shall review this de novo.
The court provided the jury with several legal definitions in Instruction No. 4, including physical injury, serious physical injury, and dangerous instrument. These definitions tracked the language of the respective statutes defining those terms, as set forth above. However, under Instruction No. 6, the court instructed the jury that it could find Farmer guilty of second-degree assault if it believed beyond a reasonable doubt that "he intentionally caused a physical injury to Lona Rose by repeatedly punching her in the face with his closed fist" and "[t]hat in so doing his closed fists were dangerous instruments." As discussed above, this is an incorrect interpretation of KRS 500.080(3). Therefore, if this issue had made it past the directed verdict stage, the instruction was defective and subject to reversal.
Because we are reversing this matter based upon insufficiency of the evidence, Farmer is not subject to retrial on the second-degree assault charge. See Davidson , 277 S.W.3d at 235 (citations and internal quotation marks omitted) ("Reversal based on insufficiency of the evidence means that the government's case was so lacking that it should not have even been submitted to the jury. Moreover, the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.").
For the foregoing reasons, the judgment of the Kenton Circuit Court is reversed, and this matter is remanded for dismissal.
ALL CONCUR.