concurring in part/dissenting in part.
Respectfully, I dissent in part.
I would also reverse the convictions as to John and Sherry Carpenter on Count II because the evidence is insufficient. There was no proof this child sustained “serious physical injury” upon any occasion except June 14, 1986, for which John Carpenter was duly convicted in Count I, and Sherry Carpenter will be retried. I concur in this, but not in our decision on Count II.
The proof as to Count II was primarily the testimony of a twelve year old boy who testified that he witnessed a previous occasion about one month earlier where he saw John Carpenter shake the child angrily and then throw her on the bed from which she bounced to the floor.
Although the proof relating to the previous occasion was sufficient to show that John Carpenter abused the child on this earlier occasion, the criminal abuse of a child statute, and the instructions given by the court in this case, required more than simply proof that the child was abused, they required “serious physical injury.”1
The statute and the trial court’s instructions on Count II specify the abuse of the child must be intentional and must be such that it “caused a serious physical injury to [the child] or placed her in a situation that may have caused her serious physical injury.” KRS 508.100. In the context of this case, the second part of this phrase must be understood in terms of the dictionary definition of “may,” which means proof of blows intentionally inflicted which “have power” to cause serious physical injury. Webster’s Ninth New Collegiate Dictionary, 1983 ed.
An accused cannot be convicted under a statute specifying alternative methods for committing a crime unless the proof is sufficient to support a conviction under both of the alternatives. Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1981); Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980), overruled on other grounds by Dale v. Commonwealth, Ky., 715 S.W.2d 227 (1986). Here the proof was insufficient to support not just one, but both theories.
“Serious physical injury” is defined in the Penal Code in KRS 500.080(15). It “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.”
In the present case the only evidence of injury to the child on any occasion prior to June 14, 1986, which is covered in Count I, was x-ray evidence indicating healing fractures of the left fifth and sixth ribs, described in the medical testimony as anywhere from seven days to four months old. The Commonwealth’s Brief includes a vague reference to “retinal hemorrhaging” to support speculation that the child had brain injury from the incident one month before when the child was shaken and bounced off the bed to the floor. However, this retinal hemorrhaging was found after the serious head injury that occurred on June 14. It is consistent with the brain injury and brain hemorrhaging that occurred that date. It is not evidence of serious injury on a previous occasion.
There was no evidence from which to conclude that these partially healed rib fractures met any minimally acceptable definition for a serious physical injury. At most the evidence with regard to the May incident, which would have been covered by Count II in each indictment, indicated that John Carpenter committed fourth-degree assault, a misdemeanor with which he was *827not charged, on this prior occasion. It is insufficient to convict Sherry Carpenter of any criminal offense, let alone first-degree child abuse.
As to both John and Sherry Carpenter, the convictions for first-degree criminal abuse on Count II covering any occurrence prior to June 14, 1986, should be vacated, and the charges dismissed.
GANT, J., joins the concurring/dissenting opinion.
. The statutes define other types of abuse for which criminal liability may be imposed, "torture, cruel confinement or cruel punishment," but the present case does not implicate these alternatives.