Tharp v. Com.

• Decision Date: 21 December 2000
• Docket Number: No. 1997-SC-1063-MR.,1997-SC-1063-MR.
• Parties: Myrna L. THARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

40 S.W.3d 356

Myrna L. THARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1997-SC-1063-MR.

Supreme Court of Kentucky.

December 21, 2000.

Rehearing Denied April 26, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph Vincent Aprile, II, Assistant Public Advocate, Frankfort, Counsel for Appellant.

A.B. Chandler, III, Attorney General, Ian G. Sonego, Michael Harned, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

On January 11, 1997, Elaina Curtis, age ten months, died from a ruptured spleen which allegedly resulted from physical abuse inflicted by her stepfather, Kenneth Tharp. Medical examinations of the child's body also revealed severe bruises of the legs, abdomen, chest, forehead, left eye, scalp and the back of the head. Some of the bruises were estimated to be seven days old or older. There were also fractures of the left ulnar and of another bone just above the ankle joint, the latter estimated to be seven to eight days old and the former estimated to be a month old. A radiologist opined that the fractures were caused by two acts of deliberate child abuse occurring on two separate occasions.

Kenneth Tharp and his wife, Appellant Myrna Tharp, the child's mother, were indicted by a McCracken County Grand Jury on charges of wanton murder and criminal abuse in the first degree. Kenneth was also indicted as a persistent felony offender in the first degree. A motion for separate trials was granted, RCr 9.16, and Appellant's case was tried first. Appellant testified that she had never witnessed her husband abusing Elaina and had never observed anything seriously wrong with the child until shortly before her death. However, she had previously given statements to the police in which she admitted (1) that she had observed her husband beat the child with his fists on occasions prior to January 11, 1997; (2) that she saw her husband strike Elaina with his fists on January 11, 1997, knocking the child from side-to-side, and that she told him to stop hitting the child, but then left the room and closed the door behind her, leaving the child alone with her husband; and (3) that later that same day, she saw her husband throw Elaina to the floor, but thought he was just "playing" with the child. Shortly thereafter, Appellant observed blood in Elaina's diaper and that she was having difficulty breathing. An ambulance was called, but efforts to save the child's life were unsuccessful.

Appellant was convicted of wanton murder by complicity and of criminal abuse in the second degree, and was sentenced to a total of twenty-seven years in the penitentiary. She appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), alleging (1) that her conviction of wanton murder by complicity violates the fair warning aspect of the Ex Post Facto clauses of the United States and Kentucky constitutions; (2) that the jury was improperly instructed on the legal requirements of guilt by complicity; and (3) various errors with respect to the admission or exclusion of evidence offered at trial.

I. EX POST FACTO.

There was no evidence that Appellant killed Elaina Curtis or that she aided, abetted, encouraged, or otherwise actively participated in the conduct which resulted in Elaina's death. Her criminal liability is predicated upon the violation of her legal duty to make a proper effort to protect her child from her husband's assaults. KRS 502.020(2)(c).

KRS 502.020 describes two separate and distinct theories under which a person can be found guilty by complicity, i.e., "complicity to the act" under subsection (1) of the statute, which applies when the principal actor's conduct constitutes the criminal offense, and "complicity to the result" under subsection (2) of the statute, which applies when the result of the principal's conduct constitutes the criminal offense, viz:

(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:

(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or

(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or

(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to tire result that is sufficient for the commission of the offense is guilty of that offense when he:

(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or

(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or

(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.

(Emphasis added.)

The primary distinction between these two statutory theories of accomplice liability is that a person can be guilty of "complicity to the act" under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of "complicity to the result" under KRS 502.020(2) without the intent that the principal's act cause the criminal result, but with a state of mind which equates with "the kind of culpability with respect to the result that is sufficient for the commission of the offense," whether intent, recklessness, wantonness, or aggravated wantonness. KRS 502.020 (1974 Official Commentary); R. Lawson and W. Fortune, Kentucky Criminal Law § 3-3(b)(3), at 106, § 3-3(c)(2), at 114 (LEXIS 1998). The most common examples of offenses having a prohibited result are homicide, with the death of another as the prohibited result, and assault, with the bodily injury of another as the prohibited result. KRS 502.020 (1974 Official Commentary).

In the context of criminal homicide, a defendant can be found guilty by complicity of an intentional homicide (intentional murder or manslaughter in the first degree) under KRS 502.020(1) only if there is evidence that he/she either actively participated¹ in the actions of the principal, or failed in a legal duty to prevent those actions, with the intent that the victim's death (or serious physical injury per KRS 507.030(1)(a)) would result. However, a defendant can be found guilty of complicity to an unintentional homicide under KRS 502.020(2) if there is evidence that he/she either actively participated in the actions of the principal, or failed in a legal duty to prevent those actions, without the intent that those actions would result in the victim's death, but with recklessness, i.e., failure to perceive a substantial and unjustifiable risk that death would result, KRS 501.020(4), supporting a conviction of reckless homicide by complicity, KRS 507.050; wantonness, i.e., an awareness of and conscious disregard of a substantial and unjustifiable risk of that result, KRS 501.020(3), supporting a conviction of manslaughter in the second degree by complicity, KRS 507.040;² or aggravated wantonness, i.e., wantonness creating a grave risk of death under circumstances manifesting an extreme indifference to human life, supporting a conviction of wanton murder by complicity, KRS 507.020(1)(b).

In Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987), the mother was convicted of first-degree rape by complicity for failing to make a proper effort to prevent her husband from raping her child, i.e., complicity to a prohibited act. KRS 502.020(1)(c). In reversing the mother's conviction, we held that there was no statutory or common law duty in Kentucky requiring the mother "to prevent the commission of the rape," Knox, supra, at 711; thus, there was no basis for application of the "legal duty" theory enunciated in KRS 502.020(1)(c). We specifically rejected an argument that KRS 199.335, the then-existing statute requiring the reporting of child abuse, created a legal duty to prevent child abuse; and further held that any legislative intent embodied in the newly-enacted criminal abuse statutes, KRS 508.100, et seq., could not be considered because the offense in Knox occurred prior to the enactment of those statutes.

In Lane v. Commonwealth, Ky., 956 S.W.2d 874 (1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998), the mother was convicted of first-degree assault by complicity for failing to make a proper effort to prevent her domestic companion from inflicting serious physical injuries upon her child, i.e., complicity to a prohibited result. KRS 502.020(2)(c). In affirming the mother's conviction, we held that Kentucky law imposes a legal duty upon a parent to make a proper effort to protect his/her child from harm at the hands of another, thus triggering the "legal duty" aspects of KRS 502.020(1)(c) and (2)(c). Lane expressly overruled Knox in that respect. Lane, supra, at 876 (plurality opinion), 881 (concurring opinion). Appellant's indictment and conviction of wanton murder by complicity was predicated upon the holding in Lane. Elaina Curtis was killed on January 11, 1997. Lane was not rendered until June 19, 1997. Thus, Appellant asserts that her conviction violates the "fair warning" aspect of the Ex Post Facto Clause. U.S. Const. art. I, § 10; Ky. Const. § 19(1).

An ex post facto violation occurs in the context of a judicial decision "[w]hen a[n] ... unforeseeable state court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect [being] to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." Bouie v. City of Columbia, 378 U.S. 347, 354-55, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964).³ "[D]ue process bars courts from applying a novel construction of a criminal statute to...