Morris v. Com., 88-CA-2655-MR
| Decision Date | 23 February 1990 |
| Docket Number | No. 88-CA-2655-MR,88-CA-2655-MR |
| Parties | H.D. MORRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Lowell W. Lundy, Barbourville, for appellant.
Frederic J. Cowan, Atty. Gen., Gregory C. Fuchs, Asst. Atty. Gen., Frankfort, for appellee.
Before McDONALD and WILHOIT, JJ., and WHITE, Special Judge.
This appeal is from a judgment of the Bell Circuit Court sentencing the appellant to five years' imprisonment upon a jury verdict finding him guilty of abuse of an adult in violation of KRS 209.990.
The appellant first argues that the indictment against him should have been dismissed because it did not set forth the essential facts constituting a specific offense and because it was duplicitous. He maintains that "the indictment did not clearly inform the defendant what he was to be tried for." RCr 6.10 provides that an indictment is sufficient if it contains a plain, concise and definite statement of the essential facts constituting the specific offense. The indictment here made reference to "KRS 209.990, Abuse of Adults" and went on to charge that the appellant "as a caretaker of Linda Wilson he did knowingly and willfully abuse, neglect and exploit her and in so doing caused her serious physical injury and death." The indictment plainly sets out essential facts constituting the offense denounced by KRS 209.990; viz, that the appellant knowingly and willfully abused, neglected and exploited the victim causing her serious physical injury. There is no merit to the argument that the indictment is duplicitous; it charges only one offense of causing serious physical injury to the victim, but by the different means of abuse, neglect, and exploitation. See RCr 6.10(3).
No attempt was ever made to convict the appellant of more than one offense. If the appellant had felt a need for further information concerning the particulars of the offense charged, then, of course, he could have filed a motion for a bill of particulars pursuant to RCr 6.22.
The appellant also complains that the jury was improperly instructed. The instruction under which he was convicted provided for conviction if the jury believed beyond reasonable doubt that he had actual custody of the victim, and had assumed responsibility for her health and safety and while she was in his custody or under his control he knowingly and willfully:
(a) Injured her seriously
(b) That he knowingly and willfully neglected Linda Wilson and permitted her or suffered her to be subjected to torture, cruel confinement and punishment, resulting in serious physical injuries to Linda Wilson.
(c) That during this time Linda Wilson was either physically or mentally so helpless as to be unable to care for her own self.
This instruction was captioned "First Degree Criminal Abuse," and in most respects followed the elements set out in KRS 508.100 defining that offense. First-degree criminal abuse, like the charge for which the appellant was indicted, is a Class C felony. The court also instructed on the lesser offenses of second and...
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