Brown v. Commonwealth

Decision Date16 August 2018
Docket Number2017-SC-000289-MR
Citation553 S.W.3d 826
Parties Trevor BROWN, Jr., Appellant v. COMMONWEALTH of Kentucky, Appellee
CourtSupreme Court of Kentucky

COUNSEL FOR APPELLANT:, Kathleen Kallaher Schmidt, Assistant Public Advocate.

COUNSEL FOR APPELLEE:, Andy Beshear, Attorney General of Kentucky, Jesse Robbins, Assistant Attorney General.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

A Hardin Circuit Court jury convicted Trevor Brown Jr. of complicity to the kidnapping, complicity to the attempted murder, and complicity to the first-degree robbery of Dealynn O'Connor. Following the jury’s recommendation, the trial court entered judgment sentencing Brown to a total of 40 years' imprisonment. Brown now appeals from the judgment as a matter of right,1 raising five issues for review. Finding no reversible error, we affirm the judgment.

I. BACKGROUND.

Several people, including Brown and O'Connor, came and went over the span of two days from a trailer in Hardin County, Kentucky. The events that come about during that get-together ended in criminal charges and separate grand jury indictments against five people, including Brown, who was charged with complicity to the kidnapping, complicity to the attempted murder, and complicity to the first-degree robbery of O'Connor. Three of the five pleaded guilty before trial and testified against Brown and a co-defendant, Marc Daniel McCoy,2 in a joint jury trial after which both co-defendants were convicted.

A concise summary of the facts giving rise to the charges against Brown is nearly impossible to relate because of the many actors involved and the variations in stories. Testimony at trial revealed that an argument arose at the Hardin County trailer between O'Connor and one or more of her assailants. One or more of the assailants beat O'Connor badly, took a sizable amount of money from her purse, and threw her into the bathroom.

One of the assailants then telephoned Brown, described what had happened to O'Connor, and asked him for help. Brown responded by coming to the trailer, where he and another assailant removed O'Connor—who was bound and gagged, wrapped in a bedsheet, and hooded with a pillowcase over her head—and put her into her automobile.

Testimony also revealed that, at this point, Brown possessed a paper towel containing jewelry taken from O'Connor. Brown, McCoy, and O'Connor drove to a bridge spanning the Ohio River in neighboring Meade County, Kentucky. Upon arriving at the bridge, Brown exited the vehicle with the victim, stabbed her three times, and fled the scene.

II. ANALYSIS.
A. The trial court did not err in denying Brown’s motion for directed verdict on his kidnapping charge.

Brown first argues that the trial court erred when it denied his motion for a directed verdict on the Complicity to Kidnapping. Specifically, Brown argues that the prosecutor did not prove that O'Connor suffered a serious physical injury, one of the elements necessary for a Class A felony conviction for Kidnapping under Kentucky Revised Statutes ("KRS") 509.040(2). That this issue is preserved is undisputed.

KRS 509.040(2) enhances Complicity to Kidnapping to a Class A felony if "the victim has suffered serious physical injury during the kidnapping." KRS 500.080(15) defines serious physical injury as "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ."

The jury found Brown guilty of Complicity to Kidnapping in addition to finding that O'Connor suffered a serious physical injury in the course of the kidnapping. We note at the outset of our analysis that O'Connor died in an unrelated incident before this came to trial, so she could not provide testimony describing her injuries. In fact, the only evidence at trial about O'Connor’s injuries amounted to the knowledge that she was stabbed, pictures showing the injury, and medical testimony provided by an expert witness testifying solely based on medical records.

It is difficult to say that O'Connor’s injuries here qualify under the serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ prongs. In fact, the Commonwealth does not attempt to argue satisfaction of these prongs of the serious physical injury test. This dispute then comes down to whether it was clearly unreasonable for a jury to believe that, based on the evidence adduced at trial, O'Connor suffered a "physical injury which creates a substantial risk of death."

The evidence at trial was that Brown stabbed O'Connor three times. As a result of the stabbing, O'Connor suffered a punctured lung, creating a hole in the lung and causing a pneumothorax, also known as a collapsed lung. Because of this injury, O'Connor received treatment at a level one trauma hospital. She was hospitalized for three days, had a tube inserted into her torso, and remained hospitalized until she went a full day without her lung collapsing upon removal of the chest tube. Medical testimony at trial revealed that a pneumothorax, if untreated, can lead to respiratory arrest. The testifying doctor also stated that any pneumothorax can become a "tension pneumothorax," which occurs when air becomes trapped in the chest wall and pushes the heart to the opposite side of the body. The doctor testified that this situation is "an absolute surgical emergency. People will die." The doctor testified that in O'Connor’s case, the pneumothorax was caught quickly.

"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 guilty, only then the defendant is entitled to a directed verdict of acquittal."3

We cannot say that the trial court erred in denying Brown’s motion for a directed verdict because it was not clearly unreasonable for a jury to find the stab wound causing a pneumothorax to be a serious physical injury. As stated, serious physical injury can mean a "physical injury which creates a substantial risk of death."4 Medical testimony at trial revealed that O'Connor was transferred to a level one trauma hospital and that her injury could have led to respiratory arrest and a tension pneumothorax, both of which can cause death. O'Connor was hospitalized for three days and monitored for one day without the chest tube before she could be released.

Brown cites McDaniel v. Commonwealth5 and Anderson v. Commonwealth6 for their assertions that a finding of serious physical injury "is dependent on the seriousness of the resulting injury, not the potential of the act to result in ‘serious physical injury.’ "7 Brown is essentially arguing that the state of O'Connor’s injury, as it was, did not constitute a serious physical injury. But from the evidence presented at trial, we cannot say that it was "clearly unreasonable" for a jury to find that, in and of itself, a pneumothorax, described by the evidence as potentially fatal, constituted a physical injury creating a substantial risk of death.

Our holding here is supported by the holding of an unpublished Court of Appeals case that our research shows is the only other time a Kentucky court addressed the issue of whether a pneumothorax constitutes a serious physical injury under the "physical injury creating a substantial risk of death" prong.8 Under similar facts and witness testimony, the Court of Appeals in Howard found that a pneumothorax, in and of itself, does constitute a serious physical injury, because it constitutes a "physical injury creating a substantial risk of death."9 And other jurisdictions with statutory definitions of serious physical injury identical to Kentucky’s that have taken up this issue have also found the same.10

For these reasons, we cannot say that the trial court erred when it denied Brown’s motion for directed verdict on Kidnapping enhanced to a Class A felony.

B. Hardin County was not an improper venue for the trial.

Brown argues that he was tried in the wrong country. That this issue is preserved for our review is undisputed.

Section 11 of the Kentucky Constitutes states, "In all criminal prosecutions the accused has the right to ... a ... trial by an impartial jury of the vicinage; but the General Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the Commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained." "Unless otherwise provided by law, the venue of criminal prosecutions and penal actions is in the county or city in which the offense was committed."11

"Where an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs."12 "Where the offense consists of kidnapping, seizing or confining a person without lawful authority, the prosecution may be in any county in which the person is seized or confined or through or into which he has been carried or brought."13

"The presumption is that a trial was held in the appropriate county."14 "Only slight evidence is required to sustain the venue."15 "It has generally been held in this state that it is not necessary to show by direct evidence that the crime occurred in the county of its prosecution, but the fact may be inferred from evidence and circumstances which would allow the jury to infer where the crime was committed."16

As stated, Brown was charged with Complicity to kidnapping, Complicity to Attempted Murder, and Complicity to First-Degree Robbery. The location of the trailer, where Brown first showed up and began assisting the other assailants in the robbing and kidnapping of O'Connor, is in Hardin County. Brown then traveled with McCoy and O'Connor to a bridge over the Ohio River in Meade County, where Brown got O'Connor out of the vehicle...

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