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Court of Appeals of Kentucky.


NO. 2011–CA–001892–MR

Decided: May 24, 2013

BEFORE:  ACREE, CHIEF JUDGE;  TAYLOR AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Robert Yang Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky



Michael Magyar appeals from the judgment of the Henderson Circuit Court which found him guilty of assault in the third degree and sentenced him to five years' imprisonment.   We affirm the conviction, but remand to the trial court for a new sentencing proceeding.

Henderson County Police Officers Robert Gipson and Greg Durbin responded to a domestic dispute at the apartment of Magyar and his girlfriend, Krista Adams.   Upon arriving at the apartment, Adams informed the officers that Magyar had taken her cell phone and locked her out of their apartment following an argument.   Once the Officers identified themselves, Magyar opened the door and allowed them in the apartment.   Magyar denied having Adams's cell phone which, after a brief search by the officers, was found on a couch in the apartment.   The officers left the apartment with Adams.   As Officer Gipson was closing the door behind him, he told Magyar to have a safe day.   Magyar responded, “have a shitty day,” and slammed the door shut catching Officer Gipson's hand between the door and the frame.   The Officers arrested Magyar.   Officer Gipson's hand was later x-rayed and a compression wrap was used to counter the swelling.

Magyar was indicted on one count of assault in the third degree.   A jury found him guilty and recommended a sentence of five years' imprisonment, which the trial court imposed.   This appeal followed.

Magyar first argues that the trial court erred by denying his motion for a directed verdict of acquittal because the evidence presented by the Commonwealth did not support a conviction for assault in the third degree.   We disagree.

Upon consideration of a motion for a directed verdict,

the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.   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.   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.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991) (citations omitted).

KRS  Double 508.025(1)(a)(1) provides that a person is guilty of third-degree assault if he or she “[r]ecklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to ․ [a] state, county, city, or federal peace officer[.]”  The Commonwealth sought a conviction under the theory that Magyar acted recklessly with a dangerous instrument when he slammed the door shut on Officer Gipson's hand.   The instructions to the jury defined recklessly under KRS 501.020(4), which explains:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails 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.

Here, the evidence viewed in a light most favorable to the Commonwealth establishes that Magyar angrily slammed a door shut while Officer Gipson's hand was in the doorway.   Magyar's actions caused Officer Gipson to suffer a physical injury.   From these facts, the jury could conclude Magyar acted without perceiving the risk to Officer Gipson by slamming the door in such a manner.   Additionally, the jury was free to conclude that such an action was a gross deviation from the care a reasonable person would observe, for instance, making sure the path of the door was clear before shutting it, or shutting it with more care so as not to injure anyone in the door's path.   In short, the facts viewed in favor of the Commonwealth support a finding that Magyar acted recklessly.

With respect to the jury's conclusion that the door constituted a dangerous instrument under these circumstances, we find such a finding was reasonable.   A dangerous instrument is defined 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 [.]”  KRS 500.080(3).   Here, the evidence shows that the door was a heavy entrance door that was forcefully slammed on Officer Gipson's hand.   Although a door is not considered a dangerous instrument per se, in this instance, the jury was free to find it capable of causing serious physical injury.   See Binion v. Commonwealth, 891 S.W.2d 383, 387 (Ky.1995) (holding that a glass ashtray, though not a dangerous instrument per se, could be considered a dangerous instrument when thrown at a person);  Smith v. Commonwealth, 610 S.W.2d 602, 603–04 (Ky.1980) (holding that a carrot constitutes a dangerous instrument when used to penetrate another person and cause physical injury).   The facts presented by the Commonwealth were sufficient to support Magyar's conviction of assault in the third degree and thus the trial court did not err by denying Magyar's motion for a directed verdict.

Magyar next argues the trial court abused its discretion by permitting the Commonwealth, on cross-examination of Adams, to ask her to characterize Officer Gipson's prior testimony as untruthful.   We agree that the Commonwealth's questions were improper, but find the error to be harmless.

No error regarding the admission of evidence constitutes grounds for a new trial or setting aside a conviction unless it appears “that the denial of such relief would be inconsistent with substantial justice.”  RCr  Double 9.24.   A harmless error analysis requires us to determine whether it appears “ ‘beyond a reasonable doubt that the error ․ did not contribute to the verdict obtained.’ ”  Stewart v. Commonwealth, 306 S.W.3d 502, 508 (Ky.2010) (citation omitted).   In other words, if the absence or mitigation of the error would not have changed the outcome of the case, the error was harmless.   See Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983).

The Supreme Court of Kentucky made clear that “[a] witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying.”  Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky.1997).   In this case, the Commonwealth asked Adams whether Officer Gipson was lying when he testified that Magyar claimed to not have her phone when they entered the house.   Magyar contends the question attempted to portray him as lying to Officer Gipson about having the phone.   However, the danger of a Moss violation is that it potentially undermines the credibility of the witness by painting the witness in a negative light.  Moss, 949 S.W.2d at 583.   Thus, Magyar's contention that the question was in error under Moss because it painted him in a negative light is misplaced.   Adams, not Magyar, was the testifying witness, and the location of the cell phone was irrelevant to the resolution of the case.   For the error to have affected the outcome of the case, Adams's testimony must have been essential to Magyar's defense, i.e., relevant to his lack of recklessness or the door's use as a dangerous instrument.   Even if we disregard Adams's testimony completely, the evidence still supports Magyar's conviction.   Accordingly, we find the error to be harmless.

Next, Magyar argues the trial court abused its discretion by denying his motion for a mistrial on the basis that the Commonwealth improperly introduced evidence of prior bad acts to prove his conformity therewith.   We disagree.

To grant a mistrial is an extreme remedy and

should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity.   The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way[.]

Tunstull v. Commonwealth, 337 S.W.3d 576, 591 (Ky.2011) (quoting Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky.2005) (overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010)).   Whether to order a mistrial “is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed absent an abuse of that discretion.”   Tunstull, 337 S.W.3d at 591 (citation omitted).

KRE  Double 404(b) excludes “[e]vidence of other crimes, wrongs, or acts ․ to prove the character of a person in order to show action in conformity therewith.”   Here, Officer Durbin testified that he and other officers had been dispatched to Magyar's residence on previous occasions in response to complaints of domestic disputes.   Upon Magyar's objection, the trial court admonished the jury to disregard any testimony regarding prior instances of domestic disturbances at the residence.   Officer Durbin then testified that Magyar stated he lacked respect for police officers due to prior experiences with law enforcement.   Magyar objected and again, the trial court admonished the jury to disregard the statement.

As an initial matter, we question whether evidence that the officers previously had responded to domestic dispute complaints constitutes prior bad acts evidence.   Regardless, we need not address the issue in light of the admonition given to the jury.   Generally, we presume that a jury will follow a trial court's admonition, thereby curing any harm elicited in testimony.   Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky.2004) (citation omitted).   This presumption is overcome in only two instances:  “(1) when an overwhelming probability exists that the jury is incapable of following the admonition and a strong likelihood exists that the impermissible evidence would be devastating to the defendant's case;  or (2) when the question was not premised on a factual basis and was ‘inflammatory’ or ‘highly prejudicial.’ ”  Id. (quoting Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003)).   Here, Magyar does not set forth any argument that the admonition should not be presumed effective.   Thus, working under that presumption, the admission of the evidence was harmless since the jury presumably did not consider it when finding Magyar guilty of assault in the third degree.   Accordingly, the trial court did not abuse its discretion by denying Magyar's motion for a mistrial on this basis.

Magyar further argues a new trial should have been granted on the basis that the Commonwealth engaged in prosecutorial misconduct during its closing arguments.   We disagree.

Magyar admittedly failed to object during the closing argument, thus we only review his claim for palpable error;  that is, error resulting in “manifest injustice.”  RCr 10.26.   That is to say, “ ‘if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.’ ”  Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006) (citation omitted).

In Kentucky, “[a]ttorneys are afforded great leeway in opening and closing arguments.”  McDaniel v. Commonwealth, 341 S.W.3d 89, 97 (Ky.2011) (citing Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky.1987).   However, “[a]ny effort by the prosecutor in his closing argument to shame jurors or attempt to put community pressure on jurors' decisions is strictly prohibited.”   Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky.2009).

Here, in his closing argument, the prosecutor stated that he says a prayer every night for the police officers who put their lives on the line to answer such calls as domestic violence.   He further stated that he commends them for it, and prays for them, and hopes the jury does as well.   We do not find these statements reach the level of manifest injustice.   Though the prosecutor urged the jury to pray for police officers, the request was not intertwined with Magyar's alleged guilt.   In our view, the statements merely highlighted the dangerous aspects of police work, but did not seek to shame the jurors or place pressure on them to find guilt.   Accordingly, a new trial is not warranted on this ground.

Next, Magyar claims the trial court abused its discretion by admitting into evidence uncertified court documents from Ohio during the sentencing phase of his trial, thereby violating KRS 422.040 and the rule against hearsay.   We agree.

Magyar preserved this issue for review by objecting to the introduction of the Ohio court documents at trial, thus we review for an abuse of discretion.   See Meece v. Commonwealth, 348 S.W.3d 627, 645–46 (Ky.2011).

KRS 422.040 requires that out of state records and judicial proceedings be certified by the presiding judge of that court in order to be given full faith and credit in a Kentucky court.   The Commonwealth argues the Ohio records were admissible under Hall v. Commonwealth, 817 S.W.2d 228 (Ky.1991), in which the Supreme Court of Kentucky held that certified Kentucky State Police computer printouts were admissible during the sentencing phase of the trial as proof of a defendant's prior convictions.   The court in Hall stressed that the sentencing phase of trial was governed by KRS 532.055, which permits the admission of background information that assists the jury in its penalty-fixing responsibility.  Id. at 229.   Due to KRS 532.055, the strict proof requirements normally affixed to evidence did not apply during sentencing proceedings.  Id. The court emphasized that the accuracy of the printouts was not challenged, and the printouts were introduced through the testimony of a probation officer who stated the record was kept in the ordinary course of business of the state police.  Id. at 230.   As a result, the court determined the record fell within the business record exception to the hearsay rule.  Id. See also KRE 803(6) (records kept in the ordinary course of a regularly conducted business activity are admissible hearsay exceptions).

Hall was distinguished in Robinson v. Commonwealth, 926 S.W.2d 853 (Ky.1996), in which our highest court determined that a computer printout from Ohio listing the defendant's convictions and dismissed charges was erroneous and cause for a new sentencing proceeding.   The court acknowledged that, as in Hall, the Ohio records were certified, but noted that the records contained dismissed charges, thereby violating KRS 532.055(2), which only permits the introduction of prior convictions.  Id. at 854.   The court further distinguished Hall by pointing out that the certified records in Hall were introduced by a Kentucky state police officer with knowledge of their authenticity and the manner in which the printouts were compiled and kept in the ordinary course of business.  Id. In Robinson, the Ohio records were introduced by the investigating officer in the Kentucky case, who had no knowledge of the Ohio records' authenticity or manner in which the printouts were compiled or maintained.  Id.

We find the circumstances of this case analogous to Robinson.   Most important to this issue, the Ohio records were not certified, and thus their admission violated KRS 422.040.   Additionally, the Ohio records were introduced by Magyar's probation officer from Kentucky, who did not possess knowledge of their authenticity or the manner in which they were compiled or maintained.   Therefore, the records do not fall within the business records exception of KRE 803(6).   The Commonwealth asserts that any error was harmless because Magyar's probation officer could properly testify that Magyar was on probation at the time he committed the assault.   However, this argument overlooks the difference between evidence of a defendant's probation status and evidence of the defendant's specific prior convictions.   Thus, we adhere to the reasoning set forth in Robinson and reiterate, “that to allow any further relaxation in the rules of evidence is inappropriate and dangerous to both our system of justice and the right of a defendant to have only admissible evidence presented to the jury.”  926 S.W.2d at 854.   Accordingly, the trial court erred by admitting this evidence during the sentencing proceeding, and we remand the matter with instructions to conduct a new sentencing proceeding.

Lastly, Magyar argues the trial court erred by ordering him to pay court costs since he was declared indigent.   Although Magyar did not object, court costs are imposed as a part of the sentence and are not subject to waiver.  Butler v. Commonwealth, 367 S.W.3d 609, 615 (Ky.App.2012) (citing Wellman v. Commonweath, 694 S.W.2d 696, 698 (Ky.1985)).   Here, the trial court imposed court costs on Magyar, an indigent defendant, which would appear to violate KRS 31.110(1) and Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010).   However, our highest court has recently permitted the imposition of court costs upon indigent defendants if the defendant is not considered “poor” under KRS 23A.205, i.e., unable to pay court costs presently or within the foreseeable future without “depriving himself or his dependents of the necessities of life, including food, shelter or clothing.”  Maynes v. Commonwealth, 361 S.W.3d 922, 929 (Ky.2012).   In Maynes, the court reasoned that because Maynes was to be released from custody per his diversion agreement, he could reasonably be expected to pay the costs in the near future.  Id. at 930.   Since the holding in Maynes suggests that the imposition of court costs against an indigent defendant should take into account the defendant's sentence, we must also remand this matter to the trial court for further consideration during the new sentencing proceeding.   If the trial court again imposes court costs upon Magyar, it must do so under the reasoning set forth in Maynes.

Magyar's claims on appeal do not warrant a new trial, but do necessitate a new sentencing proceeding.   Accordingly, the judgment of the Henderson Circuit Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.