Com. v. Potts, 93-SC-582-DG

• Decision Date: 29 September 1994
• Docket Number: No. 93-SC-582-DG,93-SC-582-DG
• Citation: 884 S.W.2d 654
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Phillip J. POTTS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 654

884 S.W.2d 654

COMMONWEALTH of Kentucky, Appellant, v. Phillip J. POTTS, Appellee.

No. 93-SC-582-DG.

Supreme Court of Kentucky.

Sept. 29, 1994.

J. David Niehaus, Deputy Appellate Defender of the Jefferson District Public Defender (Daniel T. Goyette, Jefferson Dist. Public Defender, of counsel), Louisville, for appellant.

Chris Gorman, Atty. Gen., Vickie L. Wise, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

SPAIN, Justice.

Appellee, Phillip J. Potts, was sentenced to imprisonment for five years following his conviction by a Jefferson County jury for second-degree assault. Upon appeal, the Court of Appeals reversed and remanded in a 2-1 decision, based upon the trial court's refusal to instruct the jury on the lesser-included offense of fourth-degree assault, pursuant to the instruction tendered by Potts. Finding no error on the part of the trial court, we reverse the Court of Appeals and reinstate the judgment and sentence.

On June 13, 1991, ¹ Phillip Potts went to his girlfriend's residence in Louisville and found her naked and in bed with another man. After the other man left, Potts assaulted the woman by hitting her in the face repeatedly with his fist, kicking her in the side while he was wearing steel-toed work shoes, hitting her over the head with a clock-radio and a lamp, beating her on the legs with a stick, and stabbing her in the thigh and pelvic/vaginal area with a pair of scissors. At his trial, Potts admitted all these acts, offering as his excuse only that he simply "lost it."

Upon examination at a hospital emergency room, the victim was found to have suffered two black eyes, a swollen and fractured cheek, lacerations to her scalp, bruises on her neck and abdomen, and puncture wounds to the left thigh and in the pelvic/vaginal area.

The appellee's trial in the Jefferson Circuit Court was held on February 12-14, 1992, at which time the jury was instructed on the offenses of second-degree assault and assault in the second degree under extreme emotional disturbance. The trial judge declined to give the appellee's tendered additional instructions on fourth-degree assault and assault in the fourth degree under extreme emotional disturbance. The appellee argued that the instructions on the said lesser-included offenses were warranted because the jury could find that the instruments used by the appellee to inflict injuries on the victim were not "dangerous instruments" as defined by statute. Trial Judge Edmund P. Karem responded in effect that classification of such items as "dangerous instruments" depended upon the circumstances under which the items were used.

The instruction on second-degree assault followed KRS 508.020 and was as follows:

You will find the defendant, PHILLIP JEROME POTTS, guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:

(a) That in Jefferson County, Kentucky, on or about the 13th day of June, 1991, he inflicted physical injury upon Joyce Purvis by means of a dangerous instrument;

(b) That he did so intentionally;

AND

(c) That the clock radio, the lamp, the steel toed shoes and/or the pair or scissors were dangerous instruments.

The trial court also defined "dangerous instrument" and "physical injury" as per KRS 500.080(3) and (13), to wit:

"Dangerous Instrument"--means any instrument, article or substance 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.

* * * * * *

"Physical Injury"--means substantial physical pain or any impairment of physical condition.

Although the very terse opinion of the Court of Appeals contains virtually no discussion of the applicability of a fourth-degree assault instruction under the particular circumstances of this case, the brief in that court by Potts emphasizes that the victim did not in fact sustain serious physical injuries. Furthermore, the said opinion does mention that the victim's stab wounds required no sutures, implying that such a fact mitigated against guilt by Potts of second-degree assault and in favor of the lesser offense of fourth-degree assault.

We would observe in that connection, that nothing in the above-cited statute defining second-degree assault requires infliction of a serious physical injury when one intentionally injures another by means of a deadly weapon, or as in this case, by means of a dangerous instrument. The requirements of the statute under these circumstances are met when any injury results, as the words "impairment of physical condition" used in the KRS 500.080(13) definition, simply mean "injury." Meredith v. Commonwealth, Ky.App., 628 S.W.2d 887 (1982).

It is true that ordinarily the question of whether an instrument or object is a "dangerous instrument" is a question of fact for the jury to determine, depending upon the manner and circumstances in which it is used. As reflected by the statutory definition set out above, in order to be so classified, it must have been used, attempted to be used, or threatened to be used in a manner wherein it "... is readily capable of causing death...