Lane v. Com.

• Decision Date: 19 June 1997
• Docket Number: No. 95-SC-941-DG,95-SC-941-DG
• Citation: 956 S.W.2d 874
• Parties: Kimberly LANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 874

956 S.W.2d 874

Kimberly LANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 95-SC-941-DG.

Supreme Court of Kentucky.

June 19, 1997.

As Modified on Denial of Rehearing Sept. 4, 1997.

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Lana Grandon, Assistant Attorney General, Criminal Appellate Division, Frankfort, Phillip Patton, Special Assistant Attorney General, Glasgow, for Appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which reversed the trial court when it sustained a motion for a new trial and set aside the conviction of Lane for complicity to commit first-degree assault on her infant daughter.

The sole issue is whether the trial judge correctly determined that the defendant did not have a legal duty to take some affirmative action to prevent the commission of an assault upon her infant daughter. Lane argues that her conduct was insufficient to support an indictment and conviction for complicity to commit assault under the legal duty theory of KRS 502.020(1)(c).

Lane and her domestic companion, Bryan Tubbs, were prosecuted for the physical injuries suffered by Lane's two-year-old daughter. Tubbs was charged with assault in the first degree and Lane was charged with complicity to commit assault in the first degree. They were tried together. Their defense was that the physical injuries suffered by the child were the result of a fall down a flight of stairs.

The indictment charged that Lane "aided, counseled, or attempted to aid Bryan Tubbs in the offense of assault in the first degree when he intentionally caused serious physical injury to the child" with a dangerous instrument, manifesting extreme indifference to the value of human life.

The evidence presented by the prosecution consisted of the testimony of three physicians who treated the victim at an emergency room and later at a Louisville hospital. According to the doctors, the victim sustained numerous bruises, abrasions and contusions, including a skull fracture. The injuries were not consistent with the history given by the mother and Tubbs that the injuries were the result of a recent fall down the stairs. Many of the injuries were linear, appeared to have resulted from the child being struck with a linear object, and did not appear to be accidental but were of an inflicted nature. Lane was found guilty by a jury of complicity to commit assault in the first degree, and Tubbs was found guilty of assault in the first degree.

On Lane's motion, the trial judge set aside her conviction and granted a new trial, reasoning that no legal duty existed which required Lane to prevent the assault on her child pursuant to Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987). The Court of Appeals reversed the ruling of the trial judge and this Court granted discretionary review.

The only issue properly before this Court is whether the trial judge committed reversible error when he found that there was no legal duty imposed on the defendant to prevent the abuse of her child. We affirm the decision of the Court of Appeals because the trial judge erred when he sustained the motion for a new trial and set aside the conviction.

KRS 620.010 specifically states that children have a fundamental right to be free from physical injury as well as other types of injury. KRS 620.030 establishes an affirmative duty to report dependency, neglect or abuse. KRS 620.010 is a statement of the legislative purpose on which the chapter is based. It should be noted that Chapter 620 replaced KRS 199.335(2) and the other sections of that law in 1986. Knox, supra, was decided on the basis of the law in existence at the time of the offense which was KRS 199.335(2).

We note that KRS 405.020 provides that the parents of a child shall nurture that child. Although we do not base our decision on an application of that provision of the statute, we observe that a secondary meaning to the commonly understood "nurture" means the act of taking care of children and certainly does not involve the tolerance of physical injury.

KRS 508.100 provides that a person is guilty of criminal abuse in the first degree when he intentionally permits a person of whom he has actual custody to be abused and thereby places him in a situation that may cause him serious physical injury. KRS 508.110 provides that one is guilty of second-degree criminal abuse if he engages in the same conduct wantonly, and KRS 508.120 provides that one is guilty of the offense of criminal abuse in the third degree if one engages in this type of conduct recklessly.

In view of the expressed statement of legislative intent of Chapter 620, we hold that KRS 620.010 creates an affirmative duty for the parent of a child to prevent such physical injury which would result in an assault on that child. This duty was clearly violated by Lane pursuant to the evidence presented at trial.

There is little if any significant difference between the words of KRS 199.335, which was the law prior to 1987, when it was repealed and replaced by a new section on dependency, neglect and abuse in Chapter 620. However, it does provide clear legislative intent to protect children from physical injury. In Knox, supra, a majority of this Court stated that there was no legal duty on the mother of a child who was the victim of first-degree rape, even though she was aware of criminal sexual conduct between her husband and her daughter, so as to impose a conviction for complicity for first-degree rape. The narrow issue presented in this case is whether, since the adoption of Chapter 620, an affirmative duty has been placed on a person, parent or guardian to prevent physical injury to a child. See KRS 620.010.

The question is the proper method to be used by a prosecutor in applying a statute in the role of an affirmative legal duty placed on a parent or other person in regard to the obligation to prevent physical injury so as to raise the possibility of a conviction for complicity. In view of the natural relationship between parent and guardian, KRS 620.010 creates an affirmative duty for parents and guardians to prevent physical injury which results in an assault on the child. Others covered by the statute have an obligation to report which is a different duty. Commonwealth v. Chandler, Ky., 722 S.W.2d 899 (1987), a unanimous decision of this Court, establishes assault and abuse as parallel crimes. The prosecutor has the option to proceed under a proper set of facts for either abuse or assault. It must be remembered that conduct based on the failure to act where there is a legal duty to act is still punishable pursuant to KRS 502.020(1)(c). The legislature has clearly expressed their intent to punish those who through passive conduct allow physical injury to children.

Lane raises two additional questions which are not properly before this Court. Lane argues that criminal abuse, rather than complicity to commit assault, was the proper charge in this case and that she did not receive notice that she was being charged with complicity under the legal duty theory. The only issue properly before this Court is a narrow one which is whether the trial judge committed reversible error when he found that there was no legal duty imposed on Lane to prevent physical injury to the child. Accordingly, any review of these secondary arguments must be denied.

In any event, Lane's contentions are without merit. The statutes of Kentucky define many criminal offenses. A single criminal act may violate more than one statute. Under such circumstances, it is within the proper discretion of the prosecutor to decide which crime the defendant should be charged with. See Wombles v. Commonwealth, Ky., 831 S.W.2d 172 (1992); Morris v. Commonwealth, Ky.App., 783 S.W.2d 889 (1990). The selection of complicity to assault, rather than complicity to abuse, was not reversible error.

In this case, Lane was charged with a violation of KRS 502.020. The indictment as returned by the grand jury was sufficient to give notice to Lane of the charge that she would need to defend against. RCr 6.10(2); Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991); Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). If Lane believed it was necessary for more specificity to the charges, she could have filed a motion for a bill of particulars. Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984). Lane waived this issue when she failed to do so. Howard v. Commonwealth, Ky., 554 S.W.2d 375 (1977).

To the degree that Knox v. Commonwealth conflicts with this decision, Knox is overruled. It is the holding of this Court that Chapter 620 of the Kentucky Revised Statutes has created an affirmative duty to prevent physical injury to children. Prosecution for such conduct can fall either under the assault provisions of the statute or under the abuse provisions of the statute.

The decision of the Court of Appeals is affirmed. The judgment of conviction is reinstated.

GRAVES, LAMBERT and WINTERSHEIMER, JJ., concur.

COOPER, J., concurs by separate opinion in which JOHNSTONE, J., joins.

STUMBO, J., dissents by separate opinion in which STEPHENS, C.J., joins.

COOPER, Justice, concurring.

I agree with the Court of Appeals and with the plurality opinion of this Court that, contrary to our holding in Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987), Appellant was charged with a unique legal duty to protect her child from assault and injury at the hands of her domestic companion and co-defendant, Bryan Tubbs. However, I do not find the source of that duty in the language of KRS Chapter 620.

Although KRS 620.010 pronounces a legislative purpose that children have certain fundamental rights which must be protected and preserved, including the right to be free from physical, sexual or emotional injury or exploitation, that pronouncement only confirms that children have the...