Campbell v. Commonwealth
| Decision Date | 19 March 2021 |
| Docket Number | NO. 2020-CA-0690-MR,2020-CA-0690-MR |
| Parties | WANDA CAMPBELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HICKMAN CIRCUIT COURT
O.W.1 resided with his great-aunt, Wanda Campbell, for a period of nearly three years, beginning at age five. Campbell's great-niece, Tiffany, and her sister also lived with Campbell during that time.
In August 2017, when O.W. was in first grade at Hickman Elementary School, his teacher noticed flat, circular, light pink marks on his hands, which appeared to her to be burns. An investigator with the Department for Community Based Services (DCBS) was called to the school to investigate the marks. O.W. initially claimed the marks were bug bites, but he later disclosed the marks were cigarette burns.
In February 2018, O.W.'s teacher noticed he seemed to be in pain while at school. When the teacher lifted O.W.'s shirt, she observed marks across his back. She escorted him to the principal's office, and an investigator from the Cabinet for Health and Family Services (Cabinet) was called. The sheriff was also informed. During his investigation, the sheriff discovered that O.W. had gotten in trouble the night before for being kicked off the school bus. The sheriff interviewed Campbell, who admitted spanking O.W. the night before.
On July 18, 2018, a grand jury charged Campbell with three counts of criminal abuse in the first degree.2 A jury trial was held on February 4, 2020. Witnesses testifying for the Commonwealth included O.W., O.W.'s first grade teacher, the DCBS investigator, the Cabinet investigator, and the sheriff. Campbell and Tiffany were the only witnesses for the defense. Six photographs taken by DCBS and Cabinet investigators were marked as exhibits and published to the jury. These photographs depicted injuries to O.W.'s back and bottom (direct view), full torso and bottom (side view), left arm pit area, and lower back and bottom, as well as the burn marks on both his right and left hands.
At trial, O.W. testified that Campbell burned his hands with a cigarette as punishment for eating a watermelon and showed the scars on his hands to the jury. O.W. further testified that Campbell "whupped" him with a belt as punishment for getting kicked off the school bus, while Tiffany and her sister held him down. O.W. testified concerning a third incident in which he claimed Campbell taped his mouth, feet, and hands, and later put him on a dog leash tied to a tree outside as punishment for eating a bowl of corn. Campbell denied these allegations and admitted only to spanking O.W. four or fives times on his clothed bottom as punishment for being kicked off the school bus. Tiffany's testimony was consistent with Campbell's.
The jury was instructed on three counts of criminal abuse in the first degree, each count corresponding to the events described above. The jury returned its verdict finding Campbell guilty of the first two counts but not guilty as to the third. On the second count, the foreperson annotated, "We are not sure what was used for the whipping but we are sure it was not a hand." The jury recommended eight years for each of the two counts to run consecutively, for a total of sixteen years' imprisonment.
The trial court imposed the jury's recommendations in its judgment and sentence, as well as court costs and jail fees. This appeal followed.
Campbell first argues the jury's verdict concerning count two was not supported by the evidence. She admits this issue is unpreserved but requests review for palpable error. RCr3 10.26 dictates:
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.
Roe v. Commonwealth, 493 S.W.3d 814, 820 (Ky. 2015) (internal quotation marks and citations omitted).
The elements of first-degree criminal abuse are set forth in KRS 508.100(1), which provides:
Notably absent from this statute is any language concerning instrumentality, much less any language indicating the instrumentality used to accomplish abuse is of consequence in obtaining a conviction. Indeed, Kentucky's highest court has held the jury need not even all agree on the instrumentality to support a conviction:
This court recognizes and has consistently maintained that the jurors may reach a unanimous verdict even though they may not all agree upon the means or method by which a defendant has committed the criminal act. Conrad v. Commonwealth, 534 S.W.3d 779, 784 (Ky. 2017) (quoting Miller v. Commonwealth, 77 S.W.3d 566,574 (Ky. 2002)) (A "conviction of the same offense under either of two alternative theories does not deprive a defendant of his right to a unanimous verdict if there is evidence to support a conviction under either theory.").
King v. Commonwealth, 554 S.W.3d 343, 352 (Ky. 2018).
The only three elements necessary to support a conviction under KRS 508.100 are: (1) intentional abuse, (2) cruel punishment, and (3) that the acts were to a minor under the age of 12. The full content of the jury instruction at issue herein reads:
The only section of this instruction Campbell now challenges is part "A[.]" Comparing this instruction to the elements required under the statute reveals part"A" concerns the element of intentional abuse; any language concerning the instrumentality—i.e., whether a belt was used in accomplishing said abuse—is essentially superfluous for finding guilt. Here, the language about the modality served merely to distinguish each count from another. We, like the jury, are satisfied the Commonwealth produced sufficient proof to meet the required element of intentional abuse.
Nevertheless, Campbell contends the only evidence presented at trial was that O.W. was struck by a belt or a hand; consequently, she asserts a finding that he was whipped with anything else is not supported by any evidence. Thus, according to Campbell, since the jury rejected evidence that O.W. was whipped with a hand and expressed doubt as to whether he was whipped with a belt, there was insufficient evidence to support its verdict. This approach, however, not only improperly places significance on the instrumentality but also ignores the evidence presented at trial by way of exhibits—namely, the photographs. There is good reason behind the adage "a picture is worth a thousand words." Those photographs and the story they undoubtedly told the jury are evidence more than sufficient to support a finding of guilt as to the second count of first-degree criminal abuse.
Campbell contends the trial court improperly assessed court costs against her in violation of KRS 23A.205(2) because she is a "poor person" and inviolation of KRS 534.020(2)(b) because the payment could not be collected within a year. She claims to have adequately preserved these arguments but in the alternative requests palpable error review.
Concerning Campbell's argument that the trial court was prohibited from imposing court costs upon her as a "poor person[,]" we find Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014), instructive, yet distinguishable. There, the Court held:
The assessment of court costs in a judgment fixing sentencing is illegal only if it orders a person adjudged to be "poor" to pay costs. Thus, while an appellate court may reverse court costs on appeal to rectify an illegal sentence, we will not go so far as to remand a facially-valid sentence to determine if there was in fact error. If a trial judge was not asked at sentencing to determine the defendant's poverty status and did not otherwise presume the defendant to be an indigent or poor person before imposing court costs, then there is no error to correct on appeal. This is because there is no affront to justice when we affirm the assessment of court costs upon a defendant whose status was not determined. It is only when the defendant's poverty status has been established, and court costs assessed contrary to that status, that we have a genuine "sentencing error"...
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