DENNIS PAYTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE (2026)

OPINION AFFIRMING

Dennis Payton (“Payton”) appeals from the Calloway Circuit Court's order denying his RCr ¹ 11.42 motion to vacate his conviction due to ineffective assistance of counsel. Finding no error, we affirm.

BACKGROUND

In January 2021, Payton was involved in a road rage incident with Jason Crawford (“Crawford”) south of New Concord, Kentucky, near the Kentucky-Tennessee state line. According to the testimony at trial, Crawford was driving down a narrow road when he came upon Payton's truck parked partly in the road. As Crawford passed, he drove into a mud puddle, apparently splashing mud onto Payton's truck. Payton pursued Crawford, following him closely. Crawford stopped quickly, causing Payton to skid to avoid hitting Crawford. Payton kept trying to get around Crawford's vehicle, and Crawford kept veering to cut him off. Eventually, Payton stopped following Crawford.

Later, Crawford stopped at a gas station for cigarettes. Just as he was pulling into the parking lot, Payton arrived from a different direction. Payton exited his truck and approached Crawford's vehicle. Crawford testified that Payton appeared angry and “on a mission.” Payton opened Crawford's door, “shared a few choice words,” and hit Crawford in the head. He then left and returned with a cylindrical-type car jack. Crawford testified that the jack had “about a four-inch-wide by six-inch bottom base plate,” and was “about three inches around.” He estimated it weighed about 2.5 to 3 pounds and was about 18 inches long when fully extended. Crawford said Payton could carry it with one hand, and it appeared to be made of steel.

As Payton approached Crawford's open door, Crawford testified that Payton lunged and swung the car jack, hitting him on the inside of his left knee. Crawford said that Payton was holding the cylindrical part of the jack and struck him with the edge of the square base. Payton hit him hard enough that it “broke the skin through [his] blue jeans and thermal underwear.” Crawford testified that multiple times, “kinda non-stop throughout the whole ordeal,” Payton told him that he “better watch [his] back” and that Payton would “kill” him.

Payton was indicted for second-degree assault, terroristic threatening, menacing, and being a first-degree persistent felony offender. Following a jury trial, Payton was convicted of second-degree assault and being a first-degree persistent felony offender and was sentenced to ten years in prison. His conviction and sentence were affirmed on direct appeal in Payton v. Commonwealth, 2022-CA-0066-MR, 2023 WL 3261466, at *1 (Ky. App. May 5, 2023). Subsequently, Payton filed an RCr 11.42 motion, alleging he received ineffective assistance of counsel because his attorney failed to offer specific grounds in support of his directed verdict motion. The circuit court denied the motion, and this appeal followed.

STANDARD OF REVIEW

“In reviewing an RCr 11.42 proceeding, the appellate court reviews the trial court's factual findings for clear error while reviewing the application of its legal standards and precedents de novo.” Ford v. Commonwealth, 628 S.W.3d 147, 156 (Ky. 2021) (citation omitted).

ANALYSIS

Payton argues that his trial counsel was ineffective for failing to state specific grounds in support of his motion for a directed verdict, as required by CR ² 50.01. He contends that the evidence was insufficient to establish that the car jack was a “dangerous instrument” under KRS ³ 508.020 and KRS 500.080(3), and had his counsel made this argument, there is “a reasonable probability the court would have granted the motion for directed verdict.”

“[A] party seeking RCr 11.42 relief for ineffective assistance of counsel has the burden of proving (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.” Commonwealth v. Searight, 423 S.W.3d 226, 230 (Ky. 2014) (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).

Even assuming counsel's failure to argue specific grounds in support of his motion for directed verdict was deficient, Payton is not entitled to RCr 11.42 relief because he cannot prove prejudice. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2070 (explaining that the defendant's failure to meet one part of the Strickland test precludes the necessity to analyze whether the second part is met). To establish prejudice, a movant must show a reasonable probability exists that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Here, Payton cannot show that had his counsel made the argument that the car jack was not a dangerous instrument, there was a reasonable probability the court would have granted the motion for directed verdict.

Payton's conviction for second-degree assault required proof that he “intentionally cause[d] physical injury to another person by means of a ․ dangerous instrument[.]” KRS 508.020(1)(b). KRS 500.080(3) defines “dangerous instrument” as “any instrument ․ which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or 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, prolonged loss or impairment of the function of any bodily organ, or eye damage or visual impairment.” KRS 500.080(19).

Payton argues that under the circumstances in which the jack was used in this case—to strike Crawford in the leg—it was not readily capable of causing death or serious physical injury. He contends there was no evidence that the jack was used to strike Crawford anywhere else on his body or that he sought medical treatment. However, the question is not whether serious physical injury occurs, but whether the object is readily capable of causing serious physical injury “under the circumstances in which it is used, attempted to be used, or threatened to be used[.]” KRS 500.080(3). And the phrase “circumstances in which it is used” is not limited to what actually happened but includes what might have happened.

In Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020), the defendant ran a butter knife up a child's stomach and then superficially cut her nose with it. He was convicted of second-degree assault. On appeal, he argued that a butter knife is not a dangerous instrument because it is not readily capable of causing death or serious physical injury. The Supreme Court affirmed the trial court's denial of the defendant's motion for a directed verdict, finding “it would not have been unreasonable for the jury to find that the butter knife was ‘used, attempted to be used, or threatened to be used’ in a way that was readily capable of causing death or serious physical injury.” Id. at 887.

Here, the evidence presented at trial was that Payton swung a 2.5 to 3-pound metal car jack and struck Crawford on the inside of his left knee. Payton was holding the jack, using the edge of its square base as a weapon. According to Crawford, Payton told him multiple times that he would “kill” him. Although Payton struck Crawford in the leg, it is not inconceivable that Payton could have struck Crawford's head or genitals. See Smith v. Commonwealth, 610 S.W.2d 602, 604 (Ky. 1980) (a carrot qualified as a dangerous instrument when used to sexually assault a woman in the vagina and rectum, resulting in physical injury but not serious physical injury). It would not have been unreasonable for the jury to find that the car jack was “used, attempted to be used, or threatened to be used” in a way that was readily capable of causing death or serious physical injury.

“On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given.” Id. “For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.” Id. Considering this standard and the evidence presented at trial, we cannot say that had Payton's counsel specifically argued the jack was not a dangerous instrument, there is a reasonable likelihood the court would have granted the motion for directed verdict. Especially considering that “ordinarily the question of whether an instrument or object is a ‘dangerous instrument’ is a question of fact for the jury to determine[.]” Commonwealth v. Potts, 884 S.W.2d 654, 656 (Ky. 1994), overruled on other grounds by Doneghy v. Commonwealth, 410 S.W.3d 95 (Ky. 2013). Accordingly, the circuit court did not err in denying Payton's RCr 11.42 motion.

CONCLUSION

The Calloway Circuit Court's order denying Payton's RCr 11.42 motion to vacate his sentence is affirmed.

FOOTNOTES

1.   Kentucky Rules of Criminal Procedure.

2.   Kentucky Rules of Civil Procedure. Our Supreme Court has “previously applied CR 50.01 to criminal cases and have held that its requirement of ‘specific grounds’ must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal.” Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005) (citations omitted).

3.   Kentucky Revised Statutes.

MCNEILL, JUDGE:

ALL CONCUR.