Thompson v. Commonwealth

PHILLIP J. THOMPSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2017-SC-000169-MR

Supreme Court of Kentucky

JUNE 14, 2018

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM CLAY CIRCUIT COURT

HONORABLE OSCAR G. HOUSE, JUDGE

NO. 14-CR-00147 & 14-CR-00147-002

MEMORANDUM OPINION OF THE COURT

AFFIRMING IN PART, VACATING IN PART, AND REMANDING

A Clay County grand jury indicted Phillip Thompson (Thompson) with one count Assault in the First Degree and one count Criminal Abuse, First Degree. In 2016, Thompson proceeded to trial. A jury convicted Thompson of both counts and recommended a total thirty-year sentence. Thompson now appeals this conviction as a matter of right on four grounds: instructions to the jury on both first-degree assault and first-degree criminal abuse violated double jeopardy; the instructions to the jury violated his right to a unanimous verdict; questioning of the victim's mother about punishment was palpable error; and questioning of Kentucky State Police Trooper Mark Allen violated Kentucky Rule of Evidence (KRE) 403 and 404. For the following reasons, we affirm in part, reverse in part, and remand to the Clay Circuit Court for further proceedings consistent with this opinion.

I. BACKGROUND

On December 8, 2014, Amber Willoughby (Willoughby), the mother of the victim in this case, A.G., went to the local office of the Cabinet for Health and Family Services. Willoughby spoke to the woman at the front desk, saying she needed to be speak with someone. The employee stated Willoughby seemed scared or upset and kept looking towards a man with her, later identified as Thompson's stepfather. The employee gestured to Willoughby to write a note and pass it to her. Willoughby wrote the following note:

My baby's father has been tourtering [sic] my son & I. His step dad is in here w/ me to make sure I don't talk We need help asap!!! My mother lives in Lexington but he is home with my 2 kids. I'm scared for our lives and there is no way to call 911.

The note was introduced and entered as an exhibit to the jury. The Cabinet employee told her supervisor; the Cabinet then contacted the police. Law enforcement and Cabinet employees went to the residence where Thompson and Willoughby were living with their children (A.G., Willoughby's son, and a daughter, the biological child of both Thompson and Willoughby), and Thompson's mother and stepfather.

When officials knocked at the residence, Thompson's mother yelled back to him, "Phillip, Amber's went and told on you." Thompson fled through a window in the rear of the residence. Cabinet officials located the children and took them into custody. They were first transported to the Cabinet office but after viewing the extent of A.G.'s injuries, A.G. was immediately transported to the hospital. A.G. presented at the hospital with multiple bruises, burns, most severely to the genitals, and an abdominal distension. He was transferred to University of Kentucky's Children's Hospital for further treatment.

A.G. was taken to the operating room. A.G. had scarring in his belly and an area of the small intestine had a complete transection, caused by an excessive amount of force applied to the area. A.G. had to have an open surgery to repair the damage. One of the doctors testified there had to be a direct blow to the area to produce such a life-threatening injury. A.G. was in the hospital until December 27, 2014.

Both Thompson and Willoughby were charged with the abuse and assault of A.G. Willoughby ultimately entered a guilty plea and testified against Thompson at trial. According to Willoughby, in the two weeks leading to the incident at the Cabinet office, Thompson had tortured and abused her and A.G. She stated he forced her to do drugs and repeatedly harmed A.G. He began with spanking him, then using a switch on him, and then proceeded to harm him in more cruel ways. He would force him to squat against the wall for long periods of time and hit him on the head with a rock if he protested in any way. He also warmed a piece of metal with a lighter and applied the metal to A.G.'s body, including his genital area, to burn him. According to Willoughby, when A.G. cried in protest, Thompson would laugh. Willoughby stated she was forcibly restrained at times from interfering or beaten in response to any attempt she made to stop Thompson from harming A.G.

After the evidence was presented, the jury convicted Thompson of one count of first-degree assault and one count of first-degree criminal abuse. The jury recommended a sentence of ten years for criminal abuse and twenty years for assault. They recommended the sentences be served consecutively for a total of thirty years in prison.

II. ANALYSIS

A. INSTRUCTING THE JURY ON FIRST-DEGREE ASSAULT AND FIRST-DEGREE CRIMINAL ABUSE DOES NOT VIOLATE THE PROSCRIPTION AGAINST DOUBLE JEOPARDY.

Thompson first argues error in the jury's instructions on both first-degree assault and first-degree criminal abuse. Thompson alleges that submission to the jury on both of these charges violates double jeopardy under the Blockburger test. However, under our case law, it is clear that there is no double jeopardy violation for these two crimes.

Kentucky Revised Statute (KRS) 508.010 states:

(1) A person is guilty of assault in the first degree when:

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

b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

KRS 508.100 states:

(1) A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby:

a) Causes serious physical injury; or

b) Places him in a situation that may cause him serious physical injury; or

c) Causes torture, cruel confinement or cruel punishment;

to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

The United States Supreme Court enunciated what is now known as the Blockburger test in Blockburger v. United States, 284 U.S. 299 (1932). The Court held that "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Blockburger, 284 U.S. at 304 (citation omitted). This test has been codified by Kentucky's General Assembly in KRS 505.020. See Polk v. Commonwealth, 679 S.W.2d 231, 233 (Ky. 1984) ("This statute is simply a codification of the rule laid down in Blockburger ..."). Relevantly here, KRS 505.020 prohibits conviction for more than one offense out of a "single course of conduct," KRS 505.020(1), when "[o]ne offense is included in the other[.]" KRS 505.020(l)(a). An offense is included in another when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" KRS 505.020(2)(a). If "a conviction for each offense require[s] proof of ... separate facts not required in order to prove the other," convictions for both offenses will not violate the double jeopardy clause of either the Kentucky or federal Constitutions. See Polk, 679 S.W.2d at 234.

Although in an unpublished opinion, this Court has specifically addressed whether convictions for both first-degree criminal abuse and first-degree assault violate the constitutional prohibition against multiple punishments for the same conduct. In Beasley v. Commonwealth, this Court stated that although the defendant did "not raise double jeopardy" as an issue, "it would not bar his convictions in this case because each charge—First-Degree Criminal Abuse and First-Degree Assault—requires proof of at least one fact which the other one does not." No. 2001-SC-0539-MR, 2003 WL 22974888, *7 (Ky. Dec. 18, 2003) (citing Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996)). The Court further explained:

For First-Degree Criminal Abuse, the Commonwealth was required to prove that [the victim] was twelve (12) years of age or less, which is not an element of First-Degree Assault, and for First-Degree Assault, the Commonwealth was required to show that [the defendant]'s conduct created a grave risk of death, which is not a requirement for First-Degree Criminal Abuse.

Id. We find the analysis identical to the issue presented by Thompson. As in Beasley, the Commonwealth had to prove different elements for each of these charges. For criminal abuse, the victim's age was an essential element. For first-degree assault, the Commonwealth had to enter evidence as to the "extreme indifference to the value of human life" of Thompson's conduct.

Additionally, we see no clear legislative intent to prohibit the prosecution of both these crimes for the same conduct; as such, the analysis under KRS 505.020 and Blockburger controls our holding. See McNeil v. Commonwealth, 468 S.W.3d 858, 869 (Ky, 2015) ("[I]f the General Assembly's intent is not otherwise plain, a strict application...