JOEL CARTER APPELLANT v. APPELLEE (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Joel J. Carter appeals from his conviction and the corresponding ten-year sentence for two counts of second-degree assault, one count of first-degree wanton endangerment, one count of first-degree possession of a controlled substance (cocaine), enhanced by a firearm, and one count of third-degree possession of a controlled substance (Xanax), enhanced by a firearm.   On appeal, Carter argues the trial court erred by failing to give jury instructions concerning self-protection, protection of others, and fourth-degree assault as a lesser included offense of second-degree assault.   After a thorough review of the parties' arguments, the record, and the applicable law, we find no error and accordingly, affirm.

The facts of this case were testified to at a multiple-day jury trial.   On August 27, 2009, Eddie Church was at home along with his wife, his sister, his three minor children, and his mother-in-law.   Around five or six in the evening, Eddie received a phone call from Adrian Oliver asking to speak to Julie, Eddie's wife's sister, and mother to Adrian's child.   Eddie told Oliver not to call again because he had previously struck Julie.   Eddie and Oliver then began to argue, with differing accounts of what each party said.   While neither Oliver nor Carter testified, Officer Brian Rogers testified that Oliver told him that Eddie and Oliver exchanged profanity and threats, ending with Eddie's challenge:  “Come to my house and we can do this.”

Eddie denied calling Oliver a racial epithet during their conversation and instead stated that after Eddie told Oliver to not contact him again, Oliver responded “If it's going to be like that, I'm a 24/7 kind of ․ [ethnic epithet]”.   Eddie retorted “Well I'm here 24/7.” ^Double Eddie then exited the house to mow the grass.

Eddie testified that one or two hours after the phone conversation between him and Oliver, a black Caprice entered Eddie's driveway.   A woman was driving, who was identified as Tiffany Brown, Carter was in the front passenger seat, and Oliver was behind Carter.   At that time, Eddie and two of his children were outside.   Eddie grabbed his child's small bat and told the people in the car to leave.   Carter then exited the vehicle and placed a firearm to Eddie's neck.   Eddie thought the firearm was a 9 mm.   Eddie stated that the cuts to his neck were caused by Carter's firearm.   Carter asked Eddie “You feel like dying today?   What are you going to do now big boy?”   Then Oliver got out of the car.

The fracas heightened when Joyce, Eddie's wife, exited the house and attacked Carter;  then Carter released Eddie.   Oliver took the bat from Eddie and attacked Joyce.   Carter then attacked Joyce as well.   During this melee Eddie entered the house to see if someone was calling the police.   Eddie exited the house and saw Carter hitting Joyce in the back of the head with the firearm.   Oliver and Carter then went to their vehicle.   Carter, while still in the driveway, discharged the firearm into the air and then aimed at Eddie and his family and again discharged the firearm across the top of the vehicle.   At the time the shots were fired, Eddie, his wife, and his sister were all on the porch.   None of the bullets hit the family or the trailer.

Catrina Church, Eddie's sister, also testified to the events on August 27, 2009.   Catrina stated that they heard Eddie turn off the lawnmower and they heard a loud car.   Brown was driving;  Oliver was in the backseat and Carter exited the vehicle with a firearm.   Eddie approached the front area from the side of the trailer with baseball bat in hand.   Catrina was trying to get the children inside.   Carter had the firearm to Eddie's neck.   Joyce went out to help Eddie;  Oliver took the bat from Eddie.   Eddie disappeared for a few minutes and Joyce was defending herself against the two men.   Oliver hit Joyce in the leg with the bat.   During this altercation, Carter and Joyce traded facial blows with their fists.   Joyce's mother was on the phone with the 911 operator.   Catrina entered the house to tell Joyce's mother that the men had a firearm.   Eddie exited the house as the men were entering their vehicle.   Catrina was writing down the license plate when Oliver threw the bat and yelled something.   When Catrina indicated that she had their license plate, Brown yelled “You don't have nothing [profanity].”   Carter discharged his weapon three times into the air and then fired four shots at Joyce and Catrina.

Joyce also testified that she heard thumping music.   She exited the house;  Eddie approached the vehicle and Carter exited the vehicle.   Joyce quickly entered the house to tell her mother to call for law enforcement backup and to get the children inside.   Joyce then exited the house and she observed that Carter had a firearm to Eddie's neck.   She approached Carter and pulled the back of his hat and Carter let go of Eddie.   Oliver grabbed the bat from Eddie.   Oliver commenced slapping Joyce and calling her profane names.   Eddie exited the house.   Carter and Joyce traded fisticuffs.   Carter held Joyce at bay on her knees by grasping her hair.   Oliver hit Joyce in her left thigh with the bat while Carter was holding Joyce.

When Eddie exited the house Carter released Joyce.   Catrina exited the house and recorded the license plate number of the vehicle.   Oliver threw the bat and Carter discharged his firearm three times into the air.   Carter got to the vehicle, aimed the firearm across the roof of the vehicle and discharged his firearm three additional times at Joyce and Catrina.   The altercation ended.   Joyce testified that her leg hurt for three or four days because of the injury caused by the bat;  she did not seek medical treatment because she did not have health insurance.   Dennis and Judy Allen, next door neighbors, also testified for the Commonwealth.   Their testimony was largely consistent with that of the Churches.

Butch Kerrick of the Meade County Sheriff's Office was involved in arresting Carter and Oliver.   At 1:18 A.M., he observed the vehicle driven by Oliver, operating on three tires and a rim, with a busted windshield.   Deputy Todd Matti testified they chased the vehicle a quarter of a mile.   Deputy Matti searched Carter and found $2600 in cash, cocaine, and pills in Carter's pockets.   The pills were later determined to contain alprazolam, the active ingredient in Xanax.   Deputy Matti found a 9 mm handgun in the glove box.

Oliver gave a statement to the police which was introduced at trial.   Therein, Oliver admitted to the phone altercation wherein he threatened Eddie.   Initially, Oliver said that he went to Eddie's house and Eddie came around the trailer with the bat;  Oliver alleged he then exited the scene and had no knowledge of the events thereafter.

Neither Carter nor Oliver introduced any evidence at trial.   After listening to the aforementioned testimony, the jury convicted Carter of two counts of second-degree assault, one count of first-degree wanton endangerment, one count of first-degree possession of a controlled substance (cocaine), enhanced by a firearm, and one count of third-degree possession of a controlled substance (Xanax), enhanced by a firearm.   Carter was sentenced to ten years.   It is from this that he now appeals.

On appeal, Carter presents two arguments, namely, (1) The trial court erred by failing to provide instructions for self-protection and protection of others;  and (2) The trial court failed to instruct the jury on fourth-degree assault as a lesser included offense of second-degree assault.   The Commonwealth disagrees and asserts, (1) The trial court was correct in not instructing the jury on self-protection and protection of another as there was no evidence to support such;  and (2) The trial court did not abuse its discretion in not instructing the jury on fourth-degree assault as a lesser included offense of second-degree assault.   We believe that these two arguments are appropriately considered together based on the interplay of the statutes discussed infra.   With this in mind we turn to our applicable jurisprudence.

At the outset, we note that our review of a trial court's rulings with respect to jury instructions is for abuse of discretion.  Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky.2009), citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky.2006).   The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).

As stated in Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky.2000):

A trial court is required to instruct on every theory of the case reasonably deducible from the evidence.  Ragland v. Commonwealth, Ky., 421 S.W.2d 79, 81 (1967);  Callison v. Commonwealth, Ky.App., 706 S.W.2d 434 (1986) (In a criminal case, it is the duty of the court to prepare and give instructions on the whole law.   This general rule requires instructions applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.)

Manning at 614.

However, the trial court's duty to instruct “does not require an instruction on a theory with no evidentiary foundation.”  Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998), citing Barbour v. Commonwealth, 824 S.W.2d 861, 863 (Ky.1992), overruled on other grounds, McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky.1994);  Neal v. Commonwealth, 303 S.W.2d 903 (Ky.1957).   With this in mind, we turn to Carter's argument.

Carter argues that the trial court erred by failing to provide instructions for self-protection and protection of others, and by failing to include an instruction on fourth-degree assault as a lesser included offense of second-degree assault.   Carter argues that the evidence presented to the jury established that there was a heated exchange between Oliver and Eddie over the phone prior to Oliver and Carter arriving at Eddie's home;  that Eddie approached the vehicle with a ball bat;  this led Carter to believe Eddie was going to attack him and Oliver.   Moreover, Carter argues that it would have been reasonable for a jury to believe that he was unaware, i.e., acting recklessly, that holding a firearm to Eddie's neck would cause a scratch since a firearm is not traditionally a weapon readily thought of as inflicting a scratch.   We agree with the Commonwealth that Carter failed to provide any evidence to support such theories entitling him to the instructions, for the reasons discussed infra.   See Houston, supra.

First, KRS 503.050 states:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.

(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

(4) A person does not have a duty to retreat prior to the use of deadly physical force.

KRS 503.050.

Similarly, KRS 503.070 states:

(1) The use of physical force by a defendant upon another person is justifiable when:

(a) The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person;  and

(b) Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.

(2) The use of deadly physical force by a defendant upon another person is justifiable when:

(a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055;  and

(b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.

(3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

KRS 503.070.

We do not believe the record supports a reasonable belief by Carter or Oliver that the force used on Eddie or Joyce was necessary to protect himself or Oliver from imminent use of unlawful force by the Eddie and/or Joyce.   Indeed, by the evidence presented, it is apparent that Eddie was at his home when Carter, Oliver, and Brown arrived and that Carter was the initial aggressor.   We agree with the Commonwealth that Eddie's holding of a ball bat, approaching the operating vehicle with all passengers inside and asking them to remove themselves from the property was insufficient to establish that Carter believed that force was necessary to protect himself or another from imminent use of unlawful force by the Eddie and/or Joyce.   Thus, we turn to KRS 503.120, the imperfect self-defense statute.

KRS 503.120 provides:

(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

(2) When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons.

KRS 503.120.

In summary, “[a] mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant.”   Commonwealth v. Hage r, 41 S.W.3d 828, 841–42 (Ky.2001) (citing Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky.1998)).   Imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a defendant of a lesser offense, i.e., one for which wantonness or recklessness is the culpable mental state.  Elliott at 420.

The above authorities, however, do not stand alone in determining whether Carter was entitled to a lesser included offense instruction.  KRS 503.060 provides as follows:

Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:

(1) The defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful;  or

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person;  or

(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:

(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury;  or

(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.

KRS 503.060.

We believe that Carter was not entitled to an imperfect self-defense instruction based on the evidence presented to the jury as KRS 503.060(3) specifically addresses this situation where Carter was the initial aggressor.   Under established rules of statutory construction, “when two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails.”  Land v. Newsome, 614 S.W.2d 948, 949 (Ky.1981);  Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky.2000);  Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky.1997).   Thus, KRS 503.060(3) controls in this case and, thus, Carter was not entitled to an imperfect self-defense instruction.

Carter also argues that he was entitled to an instruction on assault in the fourth degree as a lesser included offense of assault in the second degree because it would have been reasonable for a jury to believe that he was unaware, i.e., acting recklessly, that holding a firearm to Eddie's neck would cause a scratch since a firearm is not readily thought of as capable of inflicting a scratch.   Necessarily, we now look to the relevant statutes.

KRS 508.020 provides:

(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.

(2) Assault in the second degree is a Class C felony.

KRS 508.020.

Additionally, KRS 508.030 provides:

(1) A person is guilty of assault in the fourth degree when:

(a) He intentionally or wantonly causes physical injury to another person;  or

(b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

(2) Assault in the fourth degree is a Class A misdemeanor.

KRS 508.030.

When considering KRS 508.020 and KRS 508.030 we turn to RCr 9.54(1), which provides:  “It shall be the duty of the court to instruct the jury in writing on the law of the case․”  Under this rule, “[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) (citations omitted).  “Due process requires a lesser-included offense instruction “only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.”  Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky.2009), citing Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998).

Here, it is uncontested that the firearm Carter held to Eddie's neck was a deadly weapon.  KRS 500.080(4)(b) (“Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged ․”).  We note that “It is our opinion that when a deadly weapon or dangerous instrument is used intentionally, the requirements of KRS 508.020(1)(b) are met when any injury results.   We feel that the words “impairment of physical condition” simply mean “injury.”  Meredith v. Commonwealth, 628 S.W.2d 887, 888 (Ky.App.1982).   The evidence presented sub judice established that Carter held a deadly weapon to Eddie's neck and scratched him in the process, resulting in physical injury.   While Carter contends that a firearm is not readily thought of producing a scratch, we believe Taylor v. Commonwealth, 995 S.W.2d 355, 362 (Ky.1999) to be controlling:

Since the rifle was a deadly weapon as a matter of law, KRS 500.080(4)(a), Appellant could not have been convicted of assault in the fourth degree absent evidence that when he struck McCreary, he was acting recklessly, KRS 508.030(1),(2), i.e., that he failed to perceive the risk that McCreary would be injured as a result of being struck in the head with the rifle.  KRS 501.020(4).   An instruction on a lesser included offense requiring a different mental state from the primary offense is unwarranted unless there is evidence supporting the existence of both mental states.  Commonwealth v. Chandler, Ky., 722 S.W.2d 899 (1987);  Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978);  Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976).   Appellant did not claim to be unaware of the risk that McCreary would be injured as a result of his assault;  nor was there any other evidence to support that proposition.   Thus, Appellant was not entitled to an instruction on assault in the fourth degree.   Cf. Parker v. Commonwealth, supra, note 1, at 212.

Taylor at 362.

Without evidence that Carter was unaware of the risk of injury to Eddie, i.e., the scratch, we cannot say that the trial court abused its discretion in not submitting the proffered jury instructions on fourth-degree assault.   There being no evidence of such in the record, we find no error.

In light of the aforementioned, we affirm.

all concur.

CAPERTON, JUDGE: