MICHAEL MORAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

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Court of Appeals of Kentucky.

MICHAEL MORAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001493–MR

Decided: April 20, 2012

BEFORE:  TAYLOR, Chief Judge;  COMBS and NICKELL, Judges. BRIEF FOR APPELLANT:  Gene Lewter Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONVACATING AND REMANDING

Michael Moran appeals his conviction of fourth-degree assault in the Lewis Circuit Court.   After examining the record and applicable law, we vacate and remand.

Moran and the Commonwealth agree about the preliminary facts.   In 2007, Moran and Amy Madden (now Amy Moran) began dating while Amy was married to Howard Madden.   Amy and Madden separated in 2008.   Moran and Amy attended the same EMS (emergency medical service) class at Shawnee State Community College and later married prior to the trial at issue in this case.

On January 20, 2009, Madden dropped Amy off at the EMS class and picked her up after class.   On his way home, Moran observed Madden and Amy sitting in her red Ford Escort in the parking lot of a bank.   Moran pulled into the parking lot and parked next to the passenger side of the Escort where Amy sat.

Moran and the Commonwealth disagree about what happened next.   Moran claims that he merely asked Amy to talk to him.   She told him to meet her at her parents' house.   Moran contends that Madden got out of the car and approached Moran's truck, cursing and challenging him to fight.   Moran backed up his truck in order to leave, and when he pulled forward, he accidentally ran over Madden's leg.

Madden claims that when he got out of the Escort, he calmly and politely approached Moran's truck.   Madden believed that Moran intentionally struck him with the truck and would have struck him again if Amy had not intervened.

The record shows that Madden spent approximately twenty days in the hospital recovering from the injury to his leg.   Moran was charged with first-degree assault.   Following a three-day jury trial in June 2010, Moran was convicted of assault in the fourth degree, a misdemeanor.   He was sentenced to spend twelve months in jail.   This appeal follows.

Moran's primary argument is that trial court clearly erred when it allowed a jury instruction that permitted the jury to convict him of a crime without specifying the reason.   The instruction for assault in the fourth degree directed as follows:

If you do not find the Defendant Michael Moran guilty under Instruction No. 7 or Instruction No. 8, you will find the Defendant guilty of Fourth Degree Assault [sic] under this Instruction if, any [sic] only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about January 20, 2009 and within twelve months before the finding of the Indictment herein, he caused physical injury to Howard Madden by striking him with his truck;  AND

B. That in so doing:  (1) The Defendant was acting intentionally;  OR (2) The Defendant was acting wantonly;  OR (3) The Defendant was acting recklessly and the truck was a dangerous instrument as defined under Instruction No. 3.

Moran argues that there was not sufficient evidence to support the wanton and intentional instructions, resulting in a verdict that was not unanimous.   We agree.

The Commonwealth argues that this claim of error was not preserved for appeal because Moran's trial counsel assured the court that it would not appeal based on the jury instructions.   We agree that ordinarily “a defendant cannot complain on appeal of alleged errors invited or induced by himself[.]”  Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky.2006).   However, the sentence concludes with the language:  “particularly where ․ it is not clear that the defendant was prejudiced thereby.”  Id. (quoting U.S. v. Lewis, 524 F.2d 991, 992 (5 th Cir.1975)).   In this case, if the evidence failed to support the instruction, Moran was clearly prejudiced.   Therefore, we will undertake an analysis for palpable error pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 10.26.

Our Supreme Court has defined a palpable error as one that results in “manifest injustice” affecting a party's substantial rights.  Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006).   It expanded upon the concept by holding that an appellate court may recognize palpable error as one that “seriously affects the fairness, integrity, or public reputation of judicial proceedings” and that it should probe the record to determine if the error was “shocking or jurisprudently intolerable.”  Id. at 4.

The right to a unanimous verdict in criminal cases is guaranteed by Section 7 of the Kentucky Constitution.   Nonetheless, our Supreme Court has held that instructions with mixed states of mind – or mens rea – are appropriate if the evidence supports conviction under each theory.  Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky.1978).   A conviction not supported by the evidence by definition constitutes a manifest injustice.   See Zant v. Stephens, 462 U.S. 862, 881 (1983).

In the case before us, the instruction allowed the jury to find that Moran had acted intentionally, wantonly, OR recklessly.   Intentional behavior occurs when a person's “conscious objective is to cause [a] result or to engage in ․ conduct” defined by a statute.   Kentucky Revised Statute[s] (KRS) 501.020(1).   The statute defines wantonly as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.   The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

KRS 501.020(3).   Reckless behavior is defined by KRS § 501.020(4) as the failure:

to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists.   The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

In this case, the evidence did not support the charges of intentional or wanton conduct.   Moran testified that he accidentally hit Madden with his truck.   Madden also testified.   He claimed that he and Moran had had words, but he did not testify that Moran threatened to hit him with the truck.   Medical records indicate that Madden was inebriated and belligerent when he arrived at the hospital.   The police officers at the scene testified that Moran was sober.   Moran had remained at the scene and had previously called for help.   Moran, Madden, and Amy all testified that Madden had previously begged Moran to fight on several occasions but that Moran had never accepted any of the challenges.

At best, the evidence supported the theory that Moran acted recklessly.   It was dark in the parking lot, and he knew that Madden was standing close to his truck.   However, Moran testified that he did not see Madden in the path of his truck.   In Moran's own words, after putting the truck into drive, he “punched” the gas pedal, going forward fast.   He had miscalculated the distance and angle needed to avoid hitting the Madden vehicle.   If Moran did not perceive the risk of hitting Madden, he could not have consciously disregarded it.   Failure to perceive falls within the definition of reckless.

The jury instruction permitted the jury to speculate on alternate theories as a basis for convicting, thus creating doubt as to the unanimity of the verdict.   The evidence did not support intentional wanton conduct while it could have sustained a finding of reckless conduct.   As the evidence did not support a conviction under each theory presented in the instruction, the instruction was clearly erroneous for lack of guaranteeing unanimity.   Palpable error has resulted.  Wells, supra.   Therefore, we must vacate and remand.

While vacating the conviction renders Moran's remaining argument moot, we will nonetheless address it because it may likely resurface on remand.   The original indictment stated that Madden had sustained a broken leg in the accident.   However, Madden's injuries all related to soft tissue wounds.   No fracture occurred.

One of the elements necessary to prove an assault in the first degree is that the conduct caused serious physical injury.  KRS 508.010.   Moran's indictment erroneously cited a broken leg as the basis for this element.   On the first day of trial, the Commonwealth made a motion to change the basis for serious physical injury to “soft tissue damage.”   The court allowed the amendment despite Moran's objection.

We are not persuaded that harmful error occurred as to this issue.   The Commonwealth stated to the court that the grand jury did not hear any testimony about a broken leg.   The broken leg was only mentioned in the indictment form and was a clerical error.   There was enough evidence for the jury to find that Madden had sustained a serious physical injury.   He was hospitalized for approximately twenty days and then had to use a walker for some time following the accident.   He testified that he still has problems with the leg.   The record shows that at one point, doctors warned Madden that the wound might require amputation of the leg.

Nonetheless, the jury found that assault in the fourth degree had occurred.   An element of that offense is merely that physical injury occurred – not serious physical injury.  KRS 508.030.   The jury never heard testimony or viewed documents indicating that Madden had suffered a broken leg.   Therefore, we cannot conclude that Moran suffered any prejudice from the flaw in the original indictment.

In conclusion, we hold that the evidence did not support the charge of intentional or wanton behavior – although it could have supported reckless conduct.   As unanimity was possibly lacking in the verdict, we hold that palpable error occurred.   Therefore, we vacate Moran's conviction and remand this matter to the Lewis Circuit Court for a new trial.

ALL CONCUR.

COMBS, JUDGE:

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