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RENDERED: JUNE 16, 2016
NOT TO BE PUBLISHED
Suprrtnt court of 4 rnfuritv
2015-SC-000444-MR
GARY PENNINGTON APPELLANT
ON APPEAL FROM LYON CIRCUIT COURT
V. HONORABLE CLARENCE A. WOODALL, III, JUDGE
NO. 14-CR-00025
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury convicted Gary Pennington of first-degree assault based on a
finding that the victim suffered "serious physical injury." Pennington now
appeals as a matter of right, arguing that the trial court erred when it denied
his request for the jury to be instructed on second-degree assault under the
theory that the victim only suffered "physical injury." Having reviewed the
record, the arguments of the parties, and the law, we affirm.
I. BACKGROUND.
On April 12, 2014, Pennington was an inmate at the Kentucky State
Penitentiary serving as a kitchen worker. Following lunch service that day,
Pennington went to the kitchen stockroom to help a contract kitchen worker,
Joann Smith, refill salt and pepper shakers. For unknown reasons,
Pennington attacked Ms. Smith, repeatedly hitting her on the head with the
handle from a meat slicer. Pennington only stopped after another inmate and a
correctional officer restrained him.
Pennington was tried by a jury for first-degree assault on July 16, 2015.
Ms. Smith and several other witnesses testified regarding the injuries she
sustained as a result of Pennington's assault. The paramedic who first
responded to the penitentiary testified that, following his initial assessment of
Ms. Smith, he called for a helicopter to take her to a Level 1 Trauma. Center.
The paramedic also testified that he could see bone through the lacerations on
Ms. Smith's head.
Dr. Christopher Haughn, a trauma surgeon, treated Ms. Smith
immediately following the assault. Dr. Haughn testified that Ms. Smith
sustained a significant orbital fracture; nine very deep lacerations mostly to her
head, one of which required dressing changes while it healed because the
tissue was too damaged to suture; and a concussion. According to Dr.
Haughn, Ms. Smith did not suffer any bleeding in the brain, infection, or
wound healing problems, and she was discharged from the hospital within one
day of being admitted.
Dr. Michael Nicholas, a clinical neuropsychologist, has treated Ms. Smith
for ongoing neurological injuries. Dr. Nicholas testified that Ms. Smith first
sought treatment in August 2014 for problems with attention, concentration,
memory, slurred speech, and amnesia. Dr. Nicholas diagnosed Ms. Smith with
a traumatic brain injury and continued to treat her at the time of trial, 15
months after the assault.
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Ms. Smith testified that her eye socket was "blown;" her cheek and jaw
were broken; her C-4 and C-5 vertebra were compressed, causing numbness in
her arms; and, because of pioblems with her vision, she had to have surgery
on her eyes. Ms. Smith admitted that her eyesight had improved following
surgery; however, she stated that ongoing symptoms made it impossible for her
to read and drive. Furthermore, Ms. Smith testified that she' had not been able
to return to work as a result of the assault and that she expected to continue
receiving treatment for her ongoing symptoms.
Pennington did not call any witnesses, and he chose not to testify. The
defense tendered a second-degree assault jury instruction under the theory
that Ms. Smith had only suffered "physical injury" as opposed to "serious
physical injury" as called for under first-degree assault. The Commonwealth
objected, and, after hearing arguments from the parties, the trial court did not
include the proposed second-degree assault instruction, finding there was not
sufficient evidence in the record to support that instruction.
The jury found Pennington guilty of first-degree assault, and Pennington
appealed to this Court pursuant to section 110(2)(b) of the Kentucky
Constitution.
H. STANDARD OF REVIEW.
We review a trial court's ruling on the exclusion of a lesser included
offense instruction for abuse of discretion. Ratliff v. Commonwealth, 194
S.W.3d 258, 274 (Ky. 2006), as modified (July 28, 2006). "The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
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unfair, or unsupported by sound legal principles." Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
III. ANALYSIS.
Pennington argues that he was denied due process when the trial court
refused to instruct the jury on the lesser included offense of second-degree
assault as set forth in Kentucky Revised Statute (KRS) 508.020.
"It shall be the duty of the court to instruct the jury in writing on the
law of the case[.]" Rule of Criminal Procedure (RCr) 9.54(1). Implicit in this
rule, the instructions must be "complete and the defendant has a right to have
every issue of fact raised by the evidence and material to his defense submitted
to the jury on proper instructions." Hayes v. Commonwealth, 870 S.W.2d 786,
788 (Ky.1993). "A defendant is entitled to an instruction on any lawful defense
which he has. Although a lesser included offense is not a defense within the
technical meaning of those terms as used in the penal code, it is, in fact and
principle, a defense against the higher charge." Slaven v. Commonwealth, 962
S.W.2d 845, 856 (Ky. 1997). "[A]n instruction on a lesser included offense is
required if the evidence would permit the jury to rationally find the defendant
not guilty of the primary offense, but guilty of the lesser offense." Thomas v.
Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005). However, a trial court has no
duty to instruct on a theory not supported by the evidence. Payne v.
Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983).
At issue in this case is the degree of injury Ms. Smith suffered as a result
of Pennington's assault. In pertinent part, a person is guilty of first-degree
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assault when he causes "serious physical injury," whereas he is guilty of
second-degree assault when he causes "physical injury." KRS 508.010(1)(a);
KRS508.020(1)(b). Therefore, the question is whether the evidence would have
permitted the jury to rationally find that Ms. Smith suffered only a "physical
injury," rather than a "serious physical injury." KRS 500.080(15) defines
"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[.]" "Physical injury" requires only "substantial physical pain or
any impairment of physical condition[.]" KRS 500.080(13).
In Parson v. Commonwealth, 144 S.W.3d 775, 787 (Ky. 2004), we held a
"prolonged impairment of health" occurred when a victim suffered from
headaches, ongoing neck pain, lack of range of motion caused by muscle
spasms, upper back pain, and arm numbness of five months' duration.
Likewise in Clift v. Commonwealth, 105 S.W.3d 467, 470-472 (Ky. App. 2003),
the Court of Appeals held that a reasonable juror could find that an 11-month-
old suffered a "prolonged impairment of health" or a "prolonged loss or
impairment of the function of [a] bodily organ" when he lost use of his arm for
four weeks due to a broken humerus.
Applying those standards to the evidence in the record, we are convinced
that the trial court did not abuse its discretion because a rational jury could
only have found that Ms. Smith suffered "serious physical injury" as a result of
Pennington's assault. As noted above, Dr. Nicholas testified that he diagnosed
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Ms. Smith with a traumatic brain injury after she presented with problems
with attention, concentration, memory, slurred speech, and amnesia.
Furthermore, he had treated Ms. Smith for nearly a year and continued to do
so at the time of trial. Ms. Smith testified that her C-4 and C-5 vertebra were
compressed causing ongoing numbness in her arms, a condition that would
require treatment in the future. Dr. Haughn testified that Ms. Smith suffered a
significant orbital fracture, and Ms. Smith testified that, despite having
undergone surgery, her eyesight had not fully returned, leaving her unable to
drive or read. Such symptoms and diagnoses are more than sufficient to
establish a prolonged impairment of health and a prolonged impairment of the
functioning of several bodily organs, i.e. the brain and the nervous and visual
systems. Thus, the evidence clearly established that Ms. Smith suffered a
"serious physical injury," and no jury could have rationally concluded that Ms.
Smith suffered only a "physical injury."
Pennington also argues that the trial court usurped the role of the jury
by weighing the evidence to determine if a second-degree assault instruction
was warranted. For support, Pennington argues that Ms. Smith's testimony as
to her injuries, which the trial court relied on, was not credible. He notes that
Ms. Smith testified that she was pursuing a civil lawsuit against Kentucky
State Penitentiary, which provided an incentive for her to exaggerate her
injuries.
We agree that witness credibility is within the province of the jury.
Ratliff, 194 S.W.3d at 269. However, in addition to Ms. Smith's testimony, the
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Commonwealth presented unrefuted testimony from the paramedic who first
treated Ms. Smith and from her treating physicians detailing the severity and
prolonged nature of her injuries. Thus, even if we believed that Ms. Smith's
testimony lacked credibility, there was overwhelming medical evidence that she
suffered serious physical injuries. Furthermore, Pennington presented no
medical evidence to the contrary and has not pointed to any medical evidence
to support his contention that Ms. Smith suffered only physical injuries.
Accordingly, the trial court did not abuse its discretion in refusing to instruct
the jury on second-degree assault because such an instruction was not
supported by the evidence.
IV. CONCLUSION.
For the reasons stated above, Pennington's conviction is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Thomas Allen Van De Rostyne
Assistant Attorney General
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