Rowe v. Com.

• Decision Date: 06 July 2001
• Docket Number: No. 1999-CA-002300-MR.,1999-CA-002300-MR.
• Citation: 50 S.W.3d 216
• Parties: Irvin C. ROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

50 S.W.3d 216

Irvin C. ROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-CA-002300-MR.

Court of Appeals of Kentucky.

July 6, 2001.

Paul J. Neel, Jr., Louisville, KY, for Appellant.

A.B. Chandler, III, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for Appellee.

Before HUDDLESTON, JOHNSON and SCHRODER, Judges.

OPINION

JOHNSON, Judge.

Irvin C. Rowe¹ has appealed from a judgment and sentence following a jury trial in the Calloway Circuit Court where he was convicted of assault in the second degree,² operating a motor vehicle under the influence,³ and carrying a concealed deadly weapon.⁴ Rowe was sentenced to prison for seven years.⁵ Having concluded that the trial court committed reversible error by refusing to instruct the jury on the offense of assault in the fourth degree, we reverse and remand for a new trial.

Rowe raises four issues in his appeal: (1) whether the trial court erred by refusing to instruct the jury on the lesser-included offense of assault in the fourth degree;⁶ (2) whether the trial court erred by allowing the Commonwealth to cross-examine Rowe about his previous violation and misdemeanor convictions; (3) whether the trial court erred in denying Rowe's motion for a mistrial when the Commonwealth's Attorney asked Rowe if his companion on the night of the altercation was a convicted felon; and (4) whether the trial court erred by allowing the Commonwealth to introduce certain hearsay evidence.

At Rowe's trial on June 24, 1999, the evidence showed that on May 9, 1998, at the courthouse square in Murray, Kentucky, Rowe struck Jason Henson in the mouth with his forearm and/or elbow.⁷ This blow to Henson's mouth caused four of his lower, front teeth to be knocked back at approximately a 45-degree angle and the teeth had to be reset by using an arch bar. The extent of Henson's injury is at the center of this appeal.

Although both sides strongly contest the events that led up to the altercation between Rowe and Henson, for purposes of this Opinion it is not necessary to rehash the entire trial.⁸ While Rowe did not deny hitting Henson, he claimed he was acting in self-defense. If the jury did not accept Rowe's defense of self-protection, the evidence presented at trial was sufficient to convict Rowe of either assault in the first degree or assault in the fourth degree. We must determine whether as a matter of law the Commonwealth proved that the injury Henson suffered as a result of the blow by Rowe constituted "serious physical injury."⁹ If so, then Rowe was not entitled to a jury instruction for assault in the fourth degree.

A defendant is not entitled to an instruction on a lesser-included offense unless the evidence is "`such as to create a reasonable doubt as to whether the defendant is guilty of the higher or lower degree.'"¹⁰ Here, the trial court refused to give Rowe an instruction on assault in the fourth degree and instructed the jury only on assault in the second degree.

KRS 508.020 sets out the following elements for assault in the second degree:¹¹

(a) He intentionally causes serious physical injury to another person; or

(b) He intentionally causes physical injury to another person by means of a deadly weapon or dangerous instrument; or

(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

KRS 508.030 sets out the following elements for assault in the fourth degree:¹²

(a) He intentionally or wantonly causes physical injury¹³ to another person; or

(b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.¹⁴

Henson testified that his chin was broken, and that in order for his teeth to be reset properly it was necessary for his mouth to be wired and for him to wear an arch bar for six weeks. Henson also testified that his injury required stitches; that he could not eat solid foods for some time; and that he experienced severe pain. Dr. Christopher Lee Poore, who was the emergency room physician at the Calloway County Hospital where Henson was taken after being injured, was the only doctor who testified at the trial. Dr. Poore testified that he saw Henson only briefly at the emergency room, and he diagnosed Henson's injury to be an evulsion or displacement of four lower, front teeth at a 45-degree angle. Dr. Poore said he had ordered a mandibular x-ray to determine if Henson had a fracture, but that before the x-ray could be taken, Henson abruptly left the emergency room. Dr. Poore testified that Henson was given some pain medication because he "was in a good deal of discomfort." Dr. Poore also testified that he saw no lacerations and that Henson did not have an injury that would create a substantial risk of death. Neither party asked Dr. Poore if Henson's injury caused a "prolonged impairment of health," nor a "prolonged loss or impairment of the function of any bodily organ[.]"¹⁵

While Dr. Poore was treating Henson, Henson's family apparently decided it would be in his best interest to immediately go to Lourdes Hospital in Paducah, Kentucky, for different treatment.¹⁶ Henson was treated at Lourdes Hospital by Dr. Ben B. Henry. While Dr. Henry did not testify at trial, some of Henson's medical records were introduced as evidence.¹⁷ In the section of Dr. Henry's evaluation entitled "PROGNOSIS," he wrote:

I feel the prognosis is extremely good for the teeth involved and the healing of the fracture in proper position since they had good blood supply and we were able to get a very good reduction of the fracture in proper position. Of course there is always the possibility of one or more of these teeth becoming nonvital and requiring root canal therapy or removal. Also, there is a chance of infection or nonunion of the mandibular alveolar segmental fracture. The patient may well have some numbness of the lip and anterior teeth area for sometime, but barring complications the sensation usually returns to normal or near normal given adequate time.

Generally, the Commonwealth argued at trial that no reasonable person could conclude that Henson's injury had not caused a "prolonged impairment of health"; and as matter of law, that Henson suffered a "[s]erious physical injury". The trial court agreed and, in essence, ruled that the only reasonable finding a jury could make as to the extent of Henson's injury was that his injury was a "[s]erious physical injury". Accordingly, Rowe was denied an instruction for assault in the fourth degree.

In Souder v. Commonwealth,¹⁸ the Supreme Court of Kentucky reversed a conviction for assault in the first degree because the Commonwealth failed to prove that the victim's injuries met the definition of "[s]erious physical injury" as required by the statute. Souder had been accused of sexually and physically abusing his girlfriend's two-and-one-half-year-old daughter. The evidence at trial showed that the child had "bruising and tearing in both the vaginal and anal areas[;]" "burns in and about her mouth" which may have been caused by "a cigarette, or a cigarette lighter[;]" "multiple areas of substantial bruising about her body[;]" and "a badly swollen arm." The Supreme Court stated that "[a]ll of the physical injuries proved to be relatively minor, and were successfully treated by the emergency room[s] ... at the various hospitals[,]" and "[n]one has required subsequent treatment, and there is no indication of any permanent physical injury." While the Supreme Court recognized the "hideous nature" of such acts, it held that these injuries did not meet the definition of "[s]erious physically injury" under KRS 500.080(15).¹⁹

In the case sub judice, according to the prognosis of treating physicians, Dr. Poore and Dr. Henry, Henson's injury was treated successfully and the injury did not create a substantial risk of death. We hold that the proof at trial failed to establish as a matter of law that Henson's injury could only reasonably be found to constitute a "[s]erious physical injury." Accordingly, the question of whether Henson's injury created a "prolonged impairment of health" was a proper question for the jury to determine; and the trial court erred by not instructing the jury on both assault in the second degree and assault in the fourth degree. Therefore, we must reverse Rowe's conviction for assault in the second degree and remand this matter for a new trial.

In his appeal, Rowe has also raised three evidentiary issues. Since all three issues may arise at a subsequent trial and since two of the trial court's rulings constitute clear error, we will address these issues. We will first address Rowe's claim that the trial court erred by allowing the Commonwealth to cross-examine him during surrebuttal by asking him about his previous violation and misdemeanor convictions. Rowe's counsel objected to this line of questioning as being irrelevant and prejudicial and moved for a mistrial.

The issue of Rowe's prior violation and misdemeanor convictions arose during the rebuttal phase of the trial. Rowe had claimed during his defense testimony that he had not been the aggressor in his altercation with Henson; the Commonwealth attempted to refute this testimony. The Commonwealth called D.J. Minter, who was 16 years old at the time of the incident, as a rebuttal witness. Minter recounted his encounter with Rowe at the Murray court square earlier on the night of May 9, 1998. Minter claimed that Rowe pushed one of his friends and used obscene language towards his friend.²⁰ Minter also claimed Rowe yelled at him and hit him in the ear.

In an attempt to respond to these allegations, Rowe was called back to testify as part of the surrebuttal phase of his trial. The following colloquy took place:

Defense Counsel: You heard this gentleman just tell these ladies and gentlemen of the jury some terrible words that you allegedly said to a guy....

Rowe: I heard what he said I...