Breazeale v. Commonwealth

• Decision Date: 30 April 2020
• Docket Number: 2019-SC-000113-MR
• Citation: 600 S.W.3d 682
• Parties: Nathaniel L. BREAZEALE, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

600 S.W.3d 682

Nathaniel L. BREAZEALE, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-000113-MR

Supreme Court of Kentucky.

APRIL 30, 2020

COUNSEL FOR APPELLANT: Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE LAMBERT

Nathaniel Breazeale was convicted of one count of first-degree assault and one count of first-degree criminal abuse. He was thereafter sentenced to thirty years and now appeals his convictions to this Court. After review, we affirm.

I. FACTUAL BACKGROUND

Breazeale began living with his girlfriend Samantha¹ in late December 2016. Samantha's then-one-year-old son Charlie, who is not Breazeale's biological child, is the victim in this case.

During March of 2017 when the crimes in this case occurred, both Breazeale and Samantha worked during the day. Normally, Samantha's sister would babysit Charlie while she and Breazeale were at work. However, on March 14^th Breazeale called in sick from work. Both he and Charlie had strep throat, and both were vomiting frequently. Therefore, Breazeale babysit Charlie that day while Samantha was at work.

Samantha testified she left for work early that morning, and there was nothing wrong with Charlie when she left. There was uncontroverted evidence, including Breazeale's own statement to police, that Breazeale was the only person in the home with Charlie that day. When Samantha arrived home at 4:30 that evening, Breazeale and Charlie were asleep on the couch. Rather than waking them she made herself some food and watched a movie. About two hours later she decided to take Charlie with her to bed. When she picked him up, she noticed a bruise over his eye. She woke Breazeale and asked what happened. He told her that Charlie slipped in his footie pajamas on the tile floor in the home and hit his head. Apparently satisfied with this answer, Samantha continued getting herself and Charlie ready for bed. She felt through his clothes to see if Charlie's diaper was wet, it was not. So Samantha put Charlie in the pack-n-play he slept in. Samantha, Charlie, and Breazeale then slept through the night.

Samantha woke up for work at 6:15 the next morning but decided to call in sick. She believed she was also coming down with strep throat. Breazeale called in sick again as well, and they went back to sleep. Around 9 am Samantha heard Charlie moving around in his pack-n-play, so she got him out to change his diaper. When she removed Charlie's clothing, she saw bruises all over his body. When asked what happened, Breazeale said while he was babysitting the day before he was holding Charlie in one arm and his pack-n-play in the other while trying to move the pack-n-play from the master bedroom to the living room. He told her he tripped and landed on Charlie in the process. Breazeale would later tell police the same story but said that he held Charlie out to the side when he fell and did not land on him.

Samantha stated that she wanted to take Charlie to the hospital as soon as Breazeale told her this. Breazeale would not allow it, as he believed he would be arrested for child abuse if they took Charlie to the hospital. Samantha said he took the keys to the only vehicle at the home and her cell phone, and they argued about going to the hospital for about fifteen minutes. Eventually Breazeale threw her phone at her and left.

Samantha then called her mother instead of 911.² Samantha's mother picked Samantha and Charlie up and took them to her home about a mile away. Almost immediately after they arrived Charlie began spitting up blood. They then took him to the Trigg County Hospital Emergency Room.

Dr. Jefferey Frederick was the ER doctor that treated Charlie. Dr. Frederick quickly realized Charlie had life-threatening injuries, and after a CT scan

revealed bleeding in Charlie's abdomen, Dr. Frederick had Charlie flown to Kosair Children's Hospital³ in Louisville (Kosair Hospital).

Dr. Melissa Currie, a Child Abuse Specialist and Medical Director in Chief of the Division of Child Maltreatment at the University of Louisville, testified regarding Charlie's injuries. Charlie had bruises on his face

, on the front of his body from his neck to his genitals, and up and down his back. He did not have a normal level of awareness and had to be given fluids and blood to keep his blood levels up. A CT scan conducted at Kosair Hospital showed that Charlie's pancreas was broken into two pieces, and that he also had a serious injury to his duodenum.⁴

Charlie was immediately taken to surgery. During surgery they found that Charlie had about 10 ounces of blood in his abdomen, which Dr. Currie testified was a lot for a baby his size. The surgeon had to remove the portion of his pancreas that was separated. Charlie's duodenum also had to be removed because its tissue was dying due to lack of blood flow. There were several tears in Charlie's mesentery⁵ that also had to be repaired.

After surgery, Charlie's organs were so swollen that not all of his organs would go back in his abdomen. They therefore had to use a "silo" device for three days to house his organs outside of his body until they could safely be put back in his abdomen. After they closed his stomach, they conducted an x-ray which revealed Charlie had a broken tibia

.⁶ An MRI showed he had a vertebral compression fracture, meaning that one of the bodies of his vertebra was crushed.⁷ Charlie was hospitalized for twelve days, eight of which were in the intensive care unit. He had a breathing tube and was placed on a ventilator. Dr. Currie testified that Charlie's injuries were consistent with an intrusion injury: a stomp, kick, or punch to his stomach. Based on the number of bruises, which were described as "innumerable," he was struck multiple times. Although Charlie has thankfully, if not miraculously, recovered from his injuries, his survival at that time was "not a given" according to Dr. Currie.

During the trial Breazeale's defense suggested that Samantha caused Charlie's injuries after Breazeale left the home the morning of the fifteenth. Alternatively, the defense asserted that Breazeale inflicted Charlie's injuries unintentionally; that the injuries occurred when Breazeale patted Charlie on the back throughout the day so that he would not choke on his own vomit.

Breazeale was convicted of first-degree assault and first-degree criminal abuse. He now appeals his resulting thirty-year sentence to this Court.

II. ANALYSIS

Breazeale asserts several alleged errors to this Court. First, that his convictions for first-degree assault and first-degree criminal abuse violated his rights against being subjected to double jeopardy. Second, that the jury instruction on first-degree criminal abuse violated his right to a unanimous verdict. Third, that the trial court failed to instruct the jury on the "use of force by a person with the responsibility for care, discipline, or safety of others" (justifiable force). Fourth, that the trial court erred by allowing prior bad acts evidence. Finally, he alleges that the trial court erred by admitting two photographs.

A. BREAZEALE'S CONVICTIONS DID NOT VIOLATE HIS RIGHTS AGAINST DOUBLE JEOPARDY

Breazeale's first argument is that his convictions for both first-degree assault and first-degree criminal abuse violated his rights against double jeopardy.⁸ Breazeale concedes he failed to preserve this issue, but requests we review it for palpable error in accordance with RCr ⁹ 10.26 :

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

An error made by a trial court that violates a defendant's rights against double jeopardy is considered per se manifest injustice, and therefore mandates reversal.¹⁰

The law of this Commonwealth regarding what constitutes double jeopardy is well-established. Kentucky follows the Blockburger¹¹ test to determine whether a defendant's rights against being subjected to double jeopardy are violated when that defendant is convicted for more than one offense arising from the same course of conduct. Specifically, our appellate courts ask whether a defendant's conviction for each offense "[required] proof of an additional fact which the other [did] not."¹² Accordingly, if "the exact same facts could prove the commission of two separate offenses, then the double jeopardy clause mandates that while a defendant may be prosecuted under both offenses, he may be convicted under only one of the statutes."¹³

In this case, the jury was instructed on both intentional and wanton first-degree assault.¹⁴ Breazeale was ultimately convicted of intentional first-degree assault. The instructions for that charge stated:

You will find the Defendant Nathaniel L. Breazeale guilty of First Degree Assault under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about March 14, 2017, and before the finding of the Indictment herein, he caused a serious physical injury to [Charlie] by punching, stomping or kicking him: AND

B. That in doing so:

(1)(a) The Defendant intended to cause serious physical injury to [Charlie]; AND

(b) The Defendant's hands or feet were a dangerous instrument as defined under Instruction 5[.]¹⁵

The jury instruction for first-degree criminal abuse directed:

You will find the Defendant Nathaniel L. Breazeale guilty of First Degree Criminal Abuse under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about March 14, 2017, and before the finding of the Indictment herein, he

...