Jones v. Commonwealth

Full title: WILLLIAM ERIC JONES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Aug 31, 2012

NO. 2011-CA-000074-MR (Ky. Ct. App. Aug. 31, 2012)

Opinion

NO. 2011-CA-000074-MR

08-31-2012

WILLLIAM ERIC JONES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky

LAMBERT

NOT TO BE PUBLISHED

APPEAL FROM GRAVES CIRCUIT COURT

HONORABLE TIMOTHY C. STARK, JUDGE

ACTION NO. 10-CR-00022

OPINION

AFFIRMING

BEFORE: CAPERTON, LAMBERT, AND NICKELL, JUDGES. LAMBERT, JUDGE: William Eric Jones appeals from a judgment imposing a sentence of fifteen years after a jury found him guilty of assault in the second degree and unlawful imprisonment in the first degree. Finding no error, we affirm.

On April 9, 2008, Marissa Huckabee, who was sixteen years of age at the time, was attacked while cleaning her car at a Graves County car wash. As she bent to remove trash from the floor of her car, a man came up behind her and wrapped his arm around her neck, choking her. She described his hold as a headlock. He then threw her inside the vehicle and straddled her, with his hands around her neck. Huckabee struggled with her assailant. Eventually, they ended up on the ground behind the car with the assailant again straddling Huckabee while choking her. She testified that she was not able to breathe, and that when she tried to get up, he pushed her head down on the concrete. She testified that she felt lightheaded, "almost seeing black" and possibly losing consciousness. Describing her feelings, Huckabee said she thought she was going to die, and that "it was the end." Her assailant released her and fled when two other customers arrived at the car wash. Huckabee suffered bruises around her throat and abrasions on her body. She was treated at the emergency room and released. Jones was subsequently arrested and indicted for second-degree assault and attempted kidnapping.

At trial, Jones's defense counsel moved for a directed verdict on the assault charge, arguing that the Commonwealth had failed to show that Huckabee suffered serious physical injury. Counsel further argued that the kidnapping exemption found at Kentucky Revised Statutes (KRS) 509.050 was applicable and precluded his conviction under the kidnapping statute. Both motions were denied. Jones was convicted of second-degree assault and first-degree unlawful imprisonment, a lesser-included charge of kidnapping, and this appeal followed.

Jones argues that he was entitled to a directed verdict on the charge of assault in the second degree.

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.
[T]here must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.

Commonwealth v. Benham, 816 S.W.2d 186, 187-188 (Ky. 1991).

A person is guilty of assault in the second degree when "[h]e intentionally causes serious physical injury to another person[.]" KRS 508.020(1)(a). Jones argues that the Commonwealth failed to prove that Huckabee suffered serious physical injury. Serious physical injury "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). Physical injury "means substantial physical pain or any impairment of physical condition[.]" KRS 500.080(13).

It is undisputed that the assault in this case falls under the "substantial risk of death" portion of the assault statute, since no evidence was adduced that Huckabee suffered prolonged disfigurement, impairment of health or function of any bodily organ. Jones argues that under the "substantial risk of death" theory, a defendant may only be found guilty if there is an injury present following the completion of the assault, and that the act of the assault itself cannot constitute the injury. Jones contends that a serious physical injury must be more than conduct which creates a risk of contemporaneous death but results in no injury.

Huckabee testified that when Jones assaulted her, she was not breathing at all; that he had a hand around her neck; that she thought she was going to die; and that she was lightheaded, seeing black and possibly losing consciousness. She testified that she has severe asthma for which she must take medications, and that after the attack, it "began to kick in." She testified that she needed to seek medical treatment following the attack, and photographs were introduced into evidence of the handprints and bruises around her throat, as well as abrasions on her legs, toes, hands, shoulders, back and face.

The bruising on Huckabee's neck and the abrasions on her body undoubtedly constituted a physical injury under KRS 500.080(13). See Covington v. Commonwealth, 849 S.W.2d 560, 564 (Ky. App. 1992) (holding facial bruise and scratch below the eye to be physical injuries); Meredith v. Commonwealth, 628 S.W.2d 887, 888 (Ky. App. 1982) (holding superficial knife wound to be a physical injury); Key v. Commonwealth, 840 S.W.2d 827, 829 (Ky. App. 1992) (holding sore ribs and having one's breath knocked out to be physical injuries). The issue is whether the jury acted unreasonably in concluding that the physical injury created a substantial risk of death for Huckabee.

"[S]ubstantial risk of death turns on the unique circumstances of an individual case." Cooper v. Commonwealth, 569 S.W.2d 668, 671 (Ky. 1978) (internal citation and quotation marks omitted). Jones argues that the factual circumstances of his case are similar to those in an unpublished case, Floyd v. Commonwealth, 2009 WL 736002 (Ky. 2009) 2007-SC-000291-MR. In Floyd, the defendant forced the victim to the floor, and with a braided, knotted nylon cord strangled her hard enough to leave an abrasion around her neck that was still clearly visible several hours later. The victim testified that during the attack her throat burned and that she could feel her face growing red and hot. The defendant was found guilty of first-degree burglary. In the sentencing phase, the trial court deemed the defendant to be a violent offender for parole purposes under KRS 439.3401(c), which provides for such a classification if the defendant committed "[a] Class B felony involving the death of the victim or serious physical injury to a victim[.]" The Supreme Court reversed, holding that

the trial court lacked grounds for believing that D.W.'s injury was "serious" for statutory purposes. There was no proof that D.W.'s injuries had a prolonged effect, nor were the injuries themselves-the abrasions and contusions to D.W.'s face, neck, and wrists-life-threatening. Although Floyd's attack was certainly violent enough to threaten death, it is "the severity of the resulting injury rather than ... the nature of the attack," that is the test for "serious physical injury" under the Penal Code.

Floyd at 10.

Floyd is an unpublished opinion and, therefore, not binding authority. Kentucky Rules of Civil Procedure (CR) 76.28(4)(c). Furthermore, it is factually distinguishable. Although the victim described a burning throat and hot face, there was no evidence that she felt that she was losing consciousness or in any way was in substantial risk of dying.

Huckabee's injuries are more analogous to those found in Cooper v. Commonwealth, 569 S.W.2d 668 (Ky. 1978). In that case, the elderly victim, who suffered from poor health and a chronic pulmonary condition, was choked and extensively bruised while being raped. "The mental trauma was such that her mind retreated from the horror of what was happening to her, and she blacked out." The Supreme Court held that the physical injuries she sustained supported a conclusion that a substantial risk of death had been created, noting that because the victim did not die on that occasion "did not nor could it erase the fact of 'substantial risk of death.'" Cooper, 569 S.W.2d at 671 (Ky. 1978). Although Huckabee was not elderly, she suffered from asthma and possibly lost consciousness not as a result of any mental trauma but as a direct result of being choked. Her testimony that she was lightheaded, seeing black and feeling that she was going to die was sufficient evidence for the jury to conclude that she faced a substantial risk of death.

By contrast, a police officer who was shot in the chest with relatively few tiny pellets of bird shot and sustained superficial wounds, and a child who sustained burns in and about the mouth, were not deemed to suffer serious physical injury because their injuries did not create a substantial risk of death. See Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977); Souder v. Commonwealth, 719 S.W.2d 730, 732 (Ky. 1986).

Although in Huckabee's case the physical marks were relatively minor, consisting of bruising around the neck and abrasions all over her body, the act of choking which created these injuries created a substantial risk of death to the victim. While we acknowledge that "the test for first-degree assault under our penal code is primarily one regarding the severity of the resulting injury rather than with the nature of the attack," Commonwealth v. Hocker, 865 S.W.2d 323, 324-25 (Ky. 1993), choking is a unique form of assault in that it may not leave a severe resulting injury, but may create a substantial risk of death. Under the circumstances, the trial court did not err in denying the motion for a directed verdict on the charge of second-degree assault.

Jones next argues his conviction for unlawful imprisonment was improper under the kidnapping exemption statute, KRS 509.050, because any restraint on Huckabee's liberty was incidental to the commission of the underlying crime of assault.

KRS 509.020(1) provides that "[a] person is guilty of unlawful imprisonment in the first degree when he knowingly and unlawfully restrains another person under circumstances which expose that person to a risk of serious physical injury."

In some circumstances, the kidnapping exemption statute, KRS 509.050, bars a kidnapping or unlawful imprisonment conviction when the defendant has committed another crime. The exemption statute states in relevant part:

A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and

incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.

KRS 509.050. The statute works by merging the offense of kidnapping with an offense other than kidnapping when a defendant interferes with a victim's liberty during the commission of the other offense. However, the interference with the victim's liberty must occur immediately with and be incidental to the other offense. Even then, the kidnapping exemption will not apply if the restraint exceeds that which is "ordinarily incident to" the non-kidnapping offense.
The exemption statute is designed to prevent misuse of the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses when the crime itself inherently involves restraint done to accomplish the crime (for example, holding a victim to cut his throat). The trial court, rather than the jury, determines whether the exemption applies, and we review that determination under the abuse of discretion standard. Duncan v. Commonwealth, 322 S.W.3d 81, 94 (Ky. 2010).

Stinnett v. Commonwealth, 364 S.W.3d 70, 76-77 (Ky. 2011).

A three-pronged test is used to determine if the exemption applies:

First, the underlying criminal purpose must be the commission of a crime defined outside of KRS [Chapter] 509. Second, the interference with the victim's liberty must have occurred immediately with or incidental to the commission of the underlying intended crime. Third, the interference with the victim's liberty must not exceed that which is ordinarily incident to the commission of the underlying crime.

Hatfield v. Commonwealth, 250 S.W.3d 590, 599(Ky. 2008).

Jones argues that the first and second prongs of the test are satisfied, because (1) the underlying crime of assault is defined in KRS 508.020, outside of KRS Chapter 509, and (2) the interference with Huckabee's liberty occurred closely in distance and time to the assault. As to the third prong, he argues that the restriction of Huckabee's liberty did not segue "into a more pronounced, prolonged, or excessive detainment" that would justify holding him "separately accountable for those actions." Id. at 600. He points to Huckabee's testimony that her attacker continued to choke her during the entire incident and moved her only a short distance in or around the car.

Huckabee testified that the attack began on the front seat of the car; she was then moved up against the vacuum cleaners, and then onto the ground behind her car. If Jones's intent was to assault his victim, it is inexplicable why he would have removed the victim from the car, where it was less likely that his presence would be detected. "The kidnapping exemption statute is to be strictly construed and the burden is upon a defendant to show that it should apply." Murphy v. Commonwealth, 50 S.W.3d 173, 180 (Ky. 2001). "[T]he exemption will not apply if the restraint goes beyond that integral to commission of the offense." Stinnett, 364 S.W.3d at 77. Moving the victim to three different locations, albeit a short distance apart, is not ordinarily incidental to the crime of assault. The trial court did not abuse its discretion in ruling that the exemption did not apply in this case.

The judgment of the Graves Circuit Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky