Jennings v. Commonwealth
| Decision Date | 27 June 2014 |
| Docket Number | NO. 2012-CA-001621-MR,2012-CA-001621-MR |
| Parties | IRIS JENNINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
Jennings's conviction arose from an altercation in which her boyfriend, Alvin McDaniel, shot Boysie Washington and Tanya Henderson. On the day in question, Washington and Henderson's twelve-year-old daughter, Jane,1 was in a fight at school with Sally, the thirteen-year-old daughter of Jennings. Following the fight, Sally went to her grandmother's house to watch television. After Washington and Henderson learned Jane had been in a fight at school, they went out in search of Sally. This led them to knock on Sally's grandmother's door, which Sally answered. Accounts differ as to what happened next. Washington then induced Sally into the street to fight Jane in order to settle the girls' rift from school. Testimony was given that Washington put his hands on Sally to get her out of the house, which Washington denied.2 Washington, Henderson, and several other neighborhood spectators watched the fight in the street.
When McDaniel learned of the street fight, he was angered by Washington's provocation of the altercation and drove the streets looking for Washington; Jennings was in McDaniel's car but did not testify at trial. McDaniel testified that he viewed Sally as a daughter and he functioned as a father figure toher. At the time of the altercation, Jennings knew Washington but McDaniel did not.
The Commonwealth introduced text messages from Jennings's phone, but did not elicit testimony indicating whether or not Jennings possessed the phone at the time the text messages were sent. A representative from Cincinnati Bell testified that Jennings's phone sent texts which stated, "They are on Trevor now, it is going down" and, "Kids been fighting call you later." Jennings then received a text saying, "Coming now." Next, a text from Jennings's phone said, "Boysie put his hands on my kids about to kick his ass" and "'Bout to fight a nigga."3
McDaniel drove down Trevor Street slowly when he heard a man call out "Hey, Iris!" Unbeknownst to McDaniel, the man who called out was Boysie Washington. Jennings did not respond; she was crying and smoking cigarettes. McDaniel circled back to Trevor Street to talk with the man. McDaniel testified that he had no conversation with Jennings about who had called out her name or how Jennings might be able to identify Washington. McDaniel parked his car. Washington approached the car and began talking to Jennings, who was seated in McDaniel's car. She said, "What's up, Boysie" and the man, later identified as Washington, answered, "What's up, Iris." During this conversation, McDaniel deduced that the man was Washington; McDaniel became enraged. McDaniel exited his vehicle and approached Washington with a pistol drawn from under theseat on the driver's side of the car. The pistol was wrapped in a green towel; McDaniel testified that he brought the pistol to keep Washington from running away and that he meant to confront him and beat him up. After a heated exchange, McDaniel fired multiple shots, hitting Washington in the torso, thigh and arm, and striking Henderson in the wrist.
McDaniel testified that Jennings did not know what McDaniel was going to do and that she did not know that he had a gun. McDaniel testified that he did not intend to fire his weapon when he got out of the car and that he only fired after seeing Washington lift up his shirt to show a black handgun.
Following the shooting, McDaniel and Jennings were tried together, with the jury finding McDaniel guilty of intentional first-degree assault of Washington and wanton first-degree assault of Henderson. Jennings was convicted of facilitating McDaniel's first-degree assault of Boysie Washington. The jury recommended a sentence of one year. The trial court probated her sentence for three years on the condition she serve thirty days in jail. It is from this conviction and sentence that Jennings now appeals.
On appeal Jennings argues: (1) the Commonwealth introduced insufficient evidence to prove that Jennings facilitated the first-degree assault of Washington by McDaniel; (2) the facilitation to first-degree assault instruction was defective; (3) the court erred in failing to grant her motion to suppress the evidence; and (4) the Commonwealth improperly called Dr. Borzada, a trauma surgeon who treated Washington, as a fact witness.
In response, the Commonwealth argues: (1) the trial court acted correctly in denying Jennings's motion for a directed verdict of acquittal; (2) Jennings has waived any issue regarding jury instructions; (3) the trial court correctly denied Jennings's motion to suppress; and (4) there was no error in calling Dr. Borzada as a fact witness. With these arguments in mind, we now turn to the issues raised by the parties.
As her first basis for appeal, Jennings argues that the Commonwealth introduced insufficient evidence to prove that Jennings facilitated the first-degree assault of Washington by McDaniel, with which the Commonwealth disagrees. This error was preserved by Jennings's motions for a directed verdict.
Generally, the Commonwealth bears the burden of establishing each and every element of an offense beyond a reasonable doubt. Brown v. Commonwealth, 890 S.W.2d 286, 288 (Ky. 1994); Commonwealth v. Hamilton, 905 S.W.2d 83, 84 (Ky. App. 1995); Kentucky Revised Statutes (KRS) 500.070(1).
In assessing whether Jennings was entitled to a directed verdict, 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). When confronted with a motion for 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 tobelieve 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. Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky. 2010).
At issue, KRS 506.080 states:
(1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.
(2) Criminal facilitation is a:
(a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;
(b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony;
(c) Class B misdemeanor when the crime facilitated is a misdemeanor.
Additionally, KRS 508.010 sets forth:
Jennings argues that the Commonwealth failed to present sufficient evidence for Jennings to be convicted of facilitation to assault in the first degree based onthe circumstantial evidence proffered and Jennings's presence at the scene of the crime. Jennings is correct that, Finnell v. Commonwealth, 295 S.W.3d 829, 833-34 (Ky. 2009)(citing Commonwealth v. Nourse, 177 S.W.3d 691, 700 (Ky. 2005)). Indeed, "[f]acilitation reflects the mental state of one who is 'wholly indifferent' to the actual completion of the crime." Commonwealth v. Nourse, 177 S.W.3d 691, 700 (Ky. 2005), citing Perdue v. Commonwealth, 916 S.W.2d 148, 160 (Ky. 1995).
We disagree with Jennings that the Commonwealth failed to present sufficient evidence. The Commonwealth presented evidence of the encounter between Washington, Jennings, and McDaniel. The Commonwealth presented evidence that Jennings's phone sent texts which stated, "They are on Trevor now, it is going down," and "Kids been fighting call you later." Jennings then received a text saying, "Coming now." Next, a text from Jennings's phone was sent saying "Boysie put his hands on my kids about to kick his ass" and "bout to fight a nigga." We believe that in light of the evidence as a whole, it would not be clearly unreasonable for a jury to find guilt; thus, the court correctly denied Jennings's motions for a directed verdict.
Next, Jennings argues that the facilitation to first-degree assault instruction was defective. In support thereof, Jennings argues: (a) the court failedto include all pertinent elements of criminal facilitation; and...
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