author: Justice JOHNSTONE. Justice GRAVES. Justice WINTERSHEIMER.

text:
    Naomi Riley TURNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2001-SC-1054-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Julie Namkin, Assistant Public Advocate, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

Appellant, Naomi Riley Turner, was found guilty of wanton murder, burglary in the second degree, and theft by unlawful taking. She was sentenced to twenty-five years, ten years, and five years, respectively, to run consecutively for a total of forty years. Appellant now appeals as a matter of right, raising six claims of error. For the reasons set forth below, we affirm in part and vacate and remand in part.

I. Facts

Beecher Russell was discovered dead in his home on the evening of March 21,1999, by his neighbor. The house was in disarray at that time: the telephone was jerked from the wall, a lamp was shattered, and a ceiling light was broken. Police photographs of Mr. Russell’s body show that his pants were torn and there were blood stains on his clothes. A pair of scissors and a knife were found beneath his body. An autopsy revealed a laceration of the scalp and an abrasion to the wrist. Furthermore, the autopsy concluded that Mr. Russell had suffered from coronary artery disease and that he had died of a heart attack. The remainder of facts material to this case were disputed at trial.

According to Appellant’s version of events, she went to Mr. Russell’s home on March 20, 1999, with her girlfriend and co-indictee, Jean Crittendon. Their intent was to borrow money and possibly a car from Mr. Russell in order to go across the county line for liquor. Tom Crittendon, Jean’s son, accompanied them. Jean knocked on Mr. Russell’s door while Appellant and Tom waited outside. Mr. Russell, who had known Jean for a number of years, invited Jean inside. As Jean was asking Mr. Russell for the money and vehicle, Appellant and Tom entered through a back door.

Appellant claims that Jean and Mr. Russell then got into an argument when he refused to lend her either the car or any money. Jean reached into Mr. Russell’s pocket and was able to remove his car keys, although he pulled away and his pants tore at the pocket seam. Meanwhile, Tom pulled the telephone from the wall and broke the lamp and ceding light. Jean and Mr. Russell continued to argue while Appellant went outside. Moments later, Jean exited the house with the car keys and Mr. Russell’s wallet, and the two left in his car. Tom was- present while these events occurred, but he did not leave in Mr. Russell’s car with Appellant and Jean.

Jean’s version of events differs significantly. According to Jean, she asked Mr. Russell to borrow his car and some money, but he declined. At that point, Tom left. Thereafter, Appellant became upset at Mr. Russell’s refusal to lend the car or money, and persisted in demanding both. Appellant then ordered Jean to remove Mr. Russell’s keys from his pocket. Jean did as she was told, and as she removed the keys, Mr. Russell’s pants tore. At that moment, Jean testified that Mr. Russell’s face grew ashen and his breathing became labored. However, Appellant ordered Jean outside and into the car, and Appellant remained alone in the house with Mr. Russell. Moments later, . Appellant emerged with the wallet and the pair left in the car.

On April 23,1999, Tom Crittendon, Jean Crittendon, and Appellant were jointly indicted by the Breathitt County Grand Jury for wanton murder, first-degree burglary, and theft. Jean pled guilty to all charges. Appellant pled not guilty, was tried and found guilty of wanton murder, burglary, and theft.

II. Trial Court’s Failure to Direct a Verdict

Appellant first claims that the trial court erred when it denied her motion for a directed verdict on the wanton murder charge. According to Appellant, the Commonwealth failed to prove every element of wanton murder, thereby requiring a directed verdict in her favor. On appellate review of a motion for a directed verdict, we must analyze the evidence as a whole, and determine if it was clearly unreasonable for the jury to find guilt. If so, then the defendant is entitled to a directed verdict of acquittal. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). Here, we conclude that the evidence was insufficient to sustain a wanton murder conviction, and therefore the trial court erred in denying Appellant’s motion for a directed verdict.

Appellant was convicted of murder pursuant to KRS 507.020(l)(b), which states that a person is guilty of murder when “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” KRS 501.020(3) defines “wantonly” as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

In ruling on a motion for a directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth, and then determine if such evidence is sufficient to induce a reasonable juror to find guilt beyond a reasonable doubt. Benham, 816 S.W.2d at 187. Here, we believe that the evidence, even when construed in the Commonwealth’s favor, was insufficient to support a finding of guilt beyond a reasonable doubt because there was simply no evidence that Appellant behaved wantonly, as defined by KRS 501.020(3).

The Commonwealth’s evidence revealed the following version of events. Jean Crit-tendon testified that Appellant directed her to remove Mr. Russell’s keys from his pocket, which she did. Jean claimed that Mr. Russell, at that point, began to turn white and his breathing changed. However, Appellant then ordered Jean to wait in the car and remained alone in the house with Mr. Russell. Jean testified that, when she left the house, it was not disturbed and that Mr. Russell did not bear any external injuries. Therefore, because the house was found later in disarray, it is fair to infer that Appellant disrupted the house. It is also reasonable to infer that, when she left the home, Mr. Russell appeared to be having a heart attack.

To find Appellant guilty of wanton murder, the jury was required to conclude that Appellant acted wantonly in ordering Jean to take Mr. Russell’s keys. The definition of wanton found in KRS 501.020(3) requires a finding that Appellant was aware of and consciously disregarded the risk of Mr. Russell’s death. After reviewing the record, we conclude that the Commonwealth failed to satisfactorily establish this element of the crime. No evidence was presented that Appellant was aware of Mr. Russell’s heart condition; in fact, Mr. Russell’s own son testified that even he was unaware of his father’s condition. Nor can it be argued, as the Commonwealth maintains, that Appellant should have been aware that her conduct would cause Mr. Russell to have a heart attack. The testimony of Mr. Russell’s son revealed that Mr. Russell outwardly appeared to be a healthy man, and in fact was seen chopping wood in his front yard mere days before his death. It is simply an impermissible leap of logic to conclude that a reasonable person engaging in Appellant’s conduct — that is, ordering another to remove a set of keys from the pocket of the resisting owner — would be or should be aware that death by heart attack might result.

We also believe that the Commonwealth failed to provide sufficient evidence to support the conclusion that Appellant’s conduct manifested the requisite extreme indifference to human life. The official commentary to KRS 507.020 lists the following actions as examples of wanton conduct: “shooting into a crowd, an occupied building or an occupied automobile; placing a time bomb in a public place; or derailing a speeding locomotive.” Wanton murder charges are sustained by this Court where the defendant engages in conduct that exhibits an extreme indifference to the risk of death or injury. In Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.1978), a wanton murder conviction was upheld where the defendant drove his vehicle while extremely intoxicated, barreling through an intersection against the red light, and struck and killed another motorist. Similarly, in Estep v. Commonwealth, 957 S.W.2d 191 (Ky.1997), the defendant behaved wantonly where, under the influence of five separate prescription drugs, she drove her pickup truck down the left side of a two-lane highway, hitting head-on and killing another driver. In Nichols v. Commonwealth, 657 S.W.2d 932 (Ky.1983), this Court concluded that a wanton murder charge could be sustained where the defendant had fired a loaded pistol into an occupied vehicle. A wanton murder conviction was not permitted to stand where a defendant, driving a loaded coal truck, struck and killed another motorist where there was no evidence that the defendant was speeding, intoxicated, or running a red light. Johnson v. Commonwealth, 885 S.W.2d 951 (Ky.1994). “This Court has held that a conviction of wanton murder is reserved exclusively for offenders who manifest virtually no concern for the value of human life.” Johnson, 885 S.W.2d at 952. We do not believe that the Commonwealth presented evidence to establish that Appellant’s conduct manifested an extreme indifference to human life. Appellant ordered Jean Crittendon to take Mr. Russell’s keys against his will, the shock and stress of which caused the elderly man to have a heart attack and die. While Appellant may be criminally liable for the resulting death, we cannot conclude that this act alone manifests an extreme indifference to human life.

Justice Graves’ dissent suggests that the “thin skull” or “eggshell plaintiff rule,” a basic concept of tort law, should have some applicability to criminal law and to this case. No authority is cited for this proposition because there is none. The suggestion confuses the separate functions of tort law and criminal law. Tort law is primarily concerned with the economic compensation of the victim or plaintiff. Dan B. Dobbs, The Law of Torts, Part I, Topic A, § 1 (West Group 2001). Thus, a negligent actor is “liable for all damages proximately resulting from the negligent act.” Leslie v. Egerton, 445 S.W.2d 116, 119 (Ky.1969). On the other hand, criminal law is concerned primarily with the “state’s interests in the security of society.” Dobbs § 2 (emphasis added). Thus, one of the main purposes of criminal law is to detér people from engaging in conduct that threatens that security. Model Penal Code § 1.02(1)(2001). This explains why, in criminal law, creating the risk of harm itself can be a punishable offense. Conversely, in tort law, without harm — i.e., damages — there is no case.

It is the Appellant’s awareness and disregard of the risk of causing death that is largely at issue here; the issue is not whether Appellant’s actions were the legal cause of Mr. Russell’s death. To be guilty of wanton murder, the level of awareness the Commonwealth must prove is reflected in KRS 501.060(3), which states that “[w)hen wantonly ... causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware.” (Emphasis added). Our holding is founded, in part, on the conclusion that the Commonwealth failed to demonstrate that Appellant was aware that her actions risked causing Mr. Russell’s death. In tort law, Appellant’s awareness of the risk that her actions posed may not be requisite to a determination of her liability. However, in criminal law, Appellant’s awareness of the risk of Mr. Russell’s death is an element of the crime of wanton murder and, without proof of that element, the conviction may not stand.

We conclude that the Commonwealth presented insufficient evidence to establish that Appellant was aware that her directive to Jean would create a risk to Mr. Russell’s life. Furthermore, we conclude that the Commonwealth failed to present adequate evidence that Appellant’s actions manifested an extreme indifference to human life. Therefore, the trial court erred in failing to direct a verdict of acquittal on the wanton murder charge. Accordingly, we reverse Appellant’s wanton murder conviction.

III. Introduction of Bad Character and Bad Acts Evidence

Appellant makes a two-part argument concerning the introduction of evidence relating to bad character and prior bad acts. First, Appellant claims that the trial court erred in denying her motion for a mistrial when Jean Crittendon testified regarding Appellant’s demeanor at the time of the crime. Specifically, the Commonwealth questioned Jean about the look on Appellant’s face when she ordered Jean to take Mr. Russell’s keys. Jean responded that Appellant looked mean. The Commonwealth then asked Jean if she had ever seen that look or demeanor from Appellant in the past. Jean replied that, in previous times when Appellant displayed a similar demeanor, Appellant usually became violent.

A pretrial motion in limine to exclude bad acts and bad character evidence was granted by the trial court. Defense counsel objected to this testimony, and requested a mistrial. The trial court recognized that Jean’s testimony amounted to evidence of bad acts, but declined to grant a mistrial. Instead, the trial court believed any prejudice could be cured through an admonition to the jury to disregard Jean’s comments regarding Appellant’s demean- or.

A mistrial is an extreme remedy to be utilized only when the record reveals a “manifest necessity” for such action. Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky.2001). The decision of the trial court concerning a motion for mistrial should only be disturbed where there is an abuse of discretion. Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky.App.1993). We find no abuse of discretion here. The trial court recognized the improper nature of the Commonwealth’s line of questioning, and admonished the jury from considering Jean’s statements. “It has long been the law in Kentucky that an admonition to the jury to disregard an improper argument cures the error unless it appears the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky.2001). Here, the bulk of the testimony admitted at trial essentially created a credibility contest between Appellant and Jean Crit-tendon. Therefore, in light of the testimony presented by both sides concerning the history of the two women’s relationship, we find that these statements were not very prejudicial, and were certainly cured by the admonition given. Finding no abuse of discretion, we affirm.

Appellant next asserts that the trial court should have granted a mistrial where Jean was permitted to testify as to the nature of her relationship with Appellant. Appellant argues that the testimony amounted to impermissible sexual stereotyping based on the homosexual nature of their relationship. We find no merit in this argument. The testimony to which Appellant now objects simply concerned who played a more dominant role in the relationship. While Jean was permitted to testify that Appellant frequently ordered her around, Appellant similarly testified that it was in fact Jean who played the more domineering role in the relationship. No contemporaneous objection was entered at trial, and Appellant now asks for reversal based on palpable error resulting in manifest injustice. RCr 10.26. We find that testimony concerning the dynamic between the two women in no way unduly prejudiced Appellant, and therefore no palpable error occurred.

IV. Hearsay Evidence

Appellant’s next claim that hearsay evidence was improperly admitted at trial is not preserved; a palpable error review is requested. RCr 10.26. Appellant objects to certain testimony elicited from Jean Crittendon during re-direct examination. Both Appellant and Jean were charged with arson; the morning after Mr. Russell’s death, the stolen car was found burned on the side of the road. As part of her plea agreement, Jean pled guilty to the arson charge, but later testified at Appellant’s trial that Christine Martin, Appellant’s daughter, set the car on fire. Due to this admission, Appellant received a directed verdict on the arson charge. Appellant now argues that the following testimony- — concerning Jean’s motivation in pleading guilty to a crime that she apparently did not commit — is inadmissible hearsay that the Commonwealth used to bolster Jean’s credibility. In other words, the testimony was used by the Commonwealth to portray Jean as someone who behaves as she is told, and therefore blindly followed Appellant’s orders at Mr. Russell’s house. We disagree.

Appellant objects to the following testimony:

Q: Do you remember telling me that your lawyers told you ...
A: Yes.
Q: To enter that plea?
A: Yes.
Q: Is that what you told me in the back room, a while ago?
A: Yes.
Q: And that’s why you pled guilty to the arson ...
A: Yes.

The responses given by Jean Crittendon are not hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. KRE 801(c). In the above exchange, Jean is not attempting to assert, as true, that her attorneys told her to plead guilty. Rather, she is testifying as to what she told the Commonwealth’s Attorney before the trial and the Commonwealth’s Attorney stopped short of asking Jean specifically what her attorneys had told her. As Jean is the declarant, these statements are not hearsay. Thus, no error occurred.

The remaining claims of error raised by Appellant of alleged hearsay evidence are rendered moot by virtue of our holding concerning the wanton murder charge.

V. Testimony of Detective Caudill

Appellant next claims that the trial court erred when it prohibited Detective Caudill from answering defense counsel’s questions about Tommy Crittendon’s prior felony convictions. Tommy Crittendon, Jean’s son, was also charged with wanton murder, first-degree burglary, and theft in this matter. He was awaiting trial at the time of Appellant’s trial, and was not called as a witness. Defense counsel sought to question Detective Caudill regarding Tommy’s prior felony conviction for burglarizing Mr. Russell’s home, some two years prior. Appellant claims that the testimony was admissible to show bias on the part of Jean Crittendon. As argued by defense counsel, the evidence of Tommy’s prior conviction would be admissible at his own trial, and theoretically would heighten the chances of conviction for his present charges. Therefore, Jean would be more likely to shift blame to Appellant in order to shield her son from a guilty verdict.

The trial court entertained lengthy arguments from both parties concerning the admissibility of this evidence, and ultimately determined that evidence of Tommy Crittendon’s prior conviction for burglarizing Mr. Russell’s home was inadmissible as irrelevant to the issue of Jean’s credibility. Appellant now challenges that holding, claiming that her ability to expose Jean’s potential bias was improperly infringed upon. We disagree. Of course, a criminal defendant enjoys a constitutionally protected right to cross-examine witnesses in order to expose a potential bias or motivation in testifying. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 354 (1974). However, the scope and extent of cross-examination is within the sound discretion of the trial judge. Barrett v. Commonwealth, 608 S.W.2d 374, 376 (Ky.1980). In delineating the boundaries of the trial court’s discretion in limiting cross-examination, this Court has noted: “So long as a reasonably complete picture of the witness’ veracity, bias, and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries.” Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.1997) citing United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990). Here, the restrictions placed on the cross-examination of Detective Caudill to expose Jean’s bias were minimal. Jean’s potential bias had already been exposed in several ways: the jury was made aware that her son faced charges stemming from the same incident, and lengthy cross-examination was permitted to establish that Jean sought to protect her son. The trial court ruled that the evidence presented adequately exposed Jean’s potential bias or motivation in testifying against Appellant, and that testimony regarding Tommy’s prior conviction was not relevant to further establish Jean’s bias and would likely confuse the jury. We find that the trial court acted well within its discretion in doing so.

VI. Failure to Hold a Competency Hearing

Appellant next claims that she was denied due process of law when the trial court failed to hold a competency hearing as required by KRS 504.100(3). This issue is unpreserved, but Appellant asks this Court to review the matter for manifest injustice pursuant to RCr 10.26. Prior to trial and pursuant to defense counsel’s motion, the trial court ordered a competency evaluation for Appellant pursuant to KRS 504.100. The resulting report revealed that Appellant’s intellectual level fell in the borderline range and that she suffered from alcohol dependence, which was in remission due to her pretrial incarceration. The report concluded that Appellant was competent to stand trial. At a pretrial hearing, defense counsel stated to the trial court that she did not expect to request a competency hearing. On the morning of the third day of trial, the trial court again raised the issue of the competency evaluation, and defense counsel stated that Appellant was waiving any hearing on competency.

Appellant now asserts that the trial court erred in fading to hold a hearing regarding the competency evaluation. According to Appellant, KRS 504.100(3) mandates that the trial court hold a hearing to determine the competency of a defendant whenever a competency evaluation has been filed. Appellant farther argues that the defendant cannot waive this hearing, and that the trial court was required to hold the hearing despite defense counsel’s waiver.

The standard of review in this matter is “[w]hether a reasonable judge, situated as was the trial court judge whose fadure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.” Thompson v. Commonwealth, 56 S.W.3d 406, 408 (Ky.2001) citing Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky.1999). We conclude that the trial judge in this matter acted reasonably with respect to Appellant’s competency. At the time when a determination as to whether to conduct an evidentiary hearing was made, the trial judge was presented with two factors: a competency evaluation concluding that Appellant was competent to stand trial; and defense counsel who on two separate occasions stated that a hearing was unnecessary. It is true, as Appellant asserts, that a hearing to determine competency cannot be waived. Mills, 996 S.W.2d at 486. However, upon appellate review, the fact that the defendant is affirmatively waiving an evidentiary hearing may be taken into account in evaluating whether the trial judge acted reasonably in failing to hold such a hearing. It is also important to note that Appellant’s first trial in this matter ended in a mistrial, and that the trial judge had observed Appellant testify at that trial. Furthermore, the trial judge had received a three-page letter from Appellant, discussing defense counsel’s failure to communicate with her regarding the case. Reviewing all of the information available to the trial court, we conclude that a reasonable trial judge would not have experienced doubt with respect to Appellant’s competency.

VII. Motion to Disqualify Jurors

In her final argument, Appellant claims that she was denied full use of her peremptory challenges when the trial court denied six motions to excuse jurors for cause. In essence, Appellant is arguing that the jurors’ responses during voir dire established that each could not render a fair or impartial verdict, and that each should have been disqualified by the trial court pursuant to RCr 9.36(1). We will discuss each juror briefly below.

Juror TF stated during voir dire that she had a close, friendly relationship with two state troopers who participated in the investigation of Mr. Russell’s death. Juror TF stated that these relationships would not impact her judgment on the case, and it was thereafter established that neither of the troopers were going to testify at the trial. For these reasons, the trial court denied a motion to remove Juror TF for cause.

Juror RS revealed that she also had a personal relationship with the two state troopers, as well as Detective Caudill. However, Juror RS unequivocally stated her relationship with Detective Caudill would not cause her to give his testimony any more or less weight than other witnesses’ testimony. Juror RS also remembered reading about the case in the local newspaper, and thinking that it was “a terrible thing to happen.” Defense counsel moved to strike Juror RS due to her-relationship with the troopers and Detective Caudill, and because her statement revealed that she had already formed an opinion about the case. The trial court denied the motion, relying on Juror RS’s assurance that she would judge the case fairly, and the fact that Juror RS had revealed no prejudice towards the defendant.

Appellant believed four jurors should have been excused by the trial court due to their stated beliefs regarding homosexuality. Juror PS made a statement during voir dire that could be interpreted as a negative attitude towards homosexuals: Juror PS stated that he did not “believe” in such relationships. Juror LW responded that she had personal and religious beliefs regarding homosexuality, but did not elaborate. Juror LG replied that she believed homosexual relationships are “wrong.” Finally, Juror LH also stated that she “didn’t believe in” homosexual relationships. Defense counsel moved to strike all four of these jurors on the basis of them stated attitudes towards homosexuality. The trial court denied all four motions, giving weight to each juror’s specific assurance that he or she could set aside those beliefs and consider the case without regard for Appellant’s homosexual relationship.

Whether a juror should be excused for cause is a matter within the sound discretion of the trial court, and will be disturbed only upon a showing of an abuse of discretion. Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky.2002). With respect to Jurors RS and TF, we find that the trial court did not abuse its discretion in refusing to excuse these jurors due to their relationship with witnesses, or because Juror RS had read about Mr. Russell’s death. This Court has held that prospective jurors are not disqualified “merely because they may have heard something about the case or may be acquainted with the parties. Prospective jurors are still qualified to sit on a case provided reasonable grounds exist to believe they can render a fair and impartial verdict based solely on the evidence adduced.” Id. at 862. The trial court was provided reasonable grounds to believe both jurors could consider the case fairly when each made affirmative statements to that effect. We find no abuse of discretion here.

With respect to Appellant’s arguments concerning Jurors PS, LW, LG, and LH, we conclude that the trial court did not abuse its discretion in denying defense counsel’s motions to excuse. While each of these jurors admitted that they personally did not believe in homosexuality, each candidly stated that their personal beliefs would not affect their impartiality. Furthermore, it should be noted that the trial court excused several prospective jurors based on their stated beliefs towards homosexuality. The record reveals that the trial court carefully drew distinctions between the types of attitudes prospective jurors held towards homosexuality: prospective jurors who considered homosexuality as an abomination were excused, while jurors who did not hold a personal belief in homosexual relationships were questioned further. From those jurors expressing that they did not personally believe in homosexuality, only those who specifically indicated they could set aside those beliefs and consider the case impartially were retained, as did PS, LW, LG, and LH. It is within the broad discretion of the trial court to consider and give weight to the responses of each juror, and we find that the trial court based its decisions on the assurances of each juror as to his or her ability to remain impartial. We see no basis to find that the trial court abused its discretion and, therefore, affirm.

For the foregoing reasons, the judgment of the Breathitt Circuit Court is affirmed in part as to Appellant’s conviction for burglary in the second degree and theft by unlawful taking. Further, we vacate Appellant’s conviction for wanton murder and remand this case to the Breathitt Circuit Court with instructions to enter a judgment consistent with this Opinion.

LAMBERT, C.J.; COOPER and KELLER, JJ., concur.

GRAVES, J., dissents by separate opinion with SCOTT and WINTERSHEIMER, JJ., joining that dissent.

WINTERSHEIMER, J., dissents by separate opinion, with GRAVES and SCOTT, JJ., joining that dissent.

Dissenting opinion by

Justice GRAVES.

Concurring with Justice Wintersheimer’s well-reasoned dissent, I write separately to respectfully examine the majority’s conclusions regarding the directed verdict for wanton murder, considering the reality that defendants take the victim as they find him. Justice Wintersheimer’s dissent establishes a firm foundation for the jury’s verdict, and common knowledge regarding heart attacks, supported by medical studies, buttresses that foundation. The evidence presented at trial concerning Appellant’s course of conduct the entire time she was with the victim provided the jury with ample opportunity to reach the conclusion overturned by the majority today.

Wanton murder, as defined by KRS 507.020, requires wanton conduct with respect to both the result and the circumstances, manifesting an extreme indifference to human life. Cook v. Commonwealth, 129 S.W.3d 351, 362-363 (Ky.2004). Wanton conduct resulting in homicide, unaccompanied by extreme indifference to human life, supports a conviction of second-degree manslaughter under KRS 507.040, rather than wanton murder — a distinction necessarily left to the trier of fact. Id.

Even ignoring Appellant’s full course of conduct, and examining only her order to Jean as the majority does, a jury could reasonably convict Appellant for wanton murder. Several factors contribute to the wantonness of Appellant’s conduct. The definition of “wantonly” found in KRS 501.020(3), as cited by the majority, and wanton conduct should be considered in the context of the common law of torts and the “thin skull” or “eggshell plaintiff’ rule. This longstanding rule of tort law illustrates that although a result may be improbable, a certain element of liability remains. Thomas A. Street explains the principle in his THE FOUNDATIONS OF LEGAL LIABILITY: A PRESENTATION OF THE THEORY AND DEVELOPMENT OF THE COMMON LAW, 457 (1906),

And if my neighbor, having an unusually thin skull, though his appearance does not so indicate, is thrown upon his head and suffers great damage, can I claim to have my liability limited to the damage which would have been suffered by a man with a normal skull?

We should bear in mind this rule and the relative improbability of a resulting homicide, when exploring the circumstances surrounding wanton conduct. Thus, whenever a criminal defendant engages in conduct affecting a victim’s bodily integrity, courts should take into account that such conduct may demonstrate an indifference to human life, even where death is not the most probable result. Although the offender must be “aware of and consciously disregard an unjustifiable risk” under KRS 501.020(3), the “thin skull” rule may be understood in this context to mean that some risks are never justifiable. The “eggshell plaintiff’ rule in this context recognizes that the jury may believe a defendant was aware of risk simply because, however improbable, the risk could never be justified. In a case such as this one, for example, although Appellant may not have personally been aware of Mr. Russell’s heart problems, it may be unjustifiable for her to claim that she was unaware that an 87-year-old man, when subjected to severe stress and a physical attack, could suffer cardiovascular failure or other severe injury.

The majority correctly explains that on a motion by the defendant for a directed verdict, the trial court must view the evidence in the light most favorable to the Commonwealth, and then determine whether the evidence could convince a juror of the defendant’s guilt beyond a reasonable doubt. The majority then relates a course of events from which a juror could reasonably find from the evidence in favor of the Commonwealth. First, Appellant directed Jean Crittendon to remove Mr. Russell’s keys from his pocket. When Ms. Crittendon followed Appellant’s instructions, the victim turned white and his breathing changed. Once Jean had the keys, Appellant asked her to wait outside in the car, leaving Appellant and the victim alone in the house. Jean explained that she left the house undisturbed, and the victim without any external injuries. From this version of the facts, the majority concedes that it is reasonable to infer that Appellant disrupted the house and caused the victim to have a heart attack. Nonetheless, the majority then holds, without explanation, that, “To find Appellant guilty of wanton murder, the jury was required to conclude that Appellant acted wantonly in ordering Jean to take Mr. Russell’s keys.” But Appellant’s order to take the victim’s keys only began her course of conduct.

According to the National Heart, Lung, and Blood Institute, about 1.1 million Americans suffer from heart attacks each year, of which about 460,000 are fatal. (www.nhlbi.nih.gov/actintime/aha/aha.htm). If, as the majority explains, it is fair to infer that Appellant disrupted the house after the victim’s heart attack, then what prevents the jury from considering that conduct wanton? The National Heart, Lung, and Blood Institute also explains that treating a victim of a heart attack quickly can save his life and limit damage to the heart. From Appellant’s inferred actions after the victim’s heart attack, including jerking the phone from the wall and physically injuring Mr. Russell as he lay helpless, the jury could have reasonably found an extreme indifference to human life. Having only considered Appellant’s command to Jean, the majority ignores what the jury most likely considered Appellant’s assessment of the value of human life, based on her reasonably inferred actions when she was alone with a man who required immediate medical attention.

In this case, Appellant ordered her friend to assault an 87-year-old man. The majority draws attention to Mr. Russell’s ability to chop wood days before the murder, but fails to explain why Appellant should have been aware of this fact and believed that Mr. Russell was healthy. Nevertheless, the majority’s attempt to convince only leads to the conclusion that a reasonable person would have had doubts about Mr. Russell’s health. Mr. Russell may have been a healthy 87-year-old man, but the jury could also have believed that any attack upon an octogenarian would manifest an extreme indifference to human life. Mr. Russell’s heart attack, while improbable, was more likely than it would have been twenty or thirty years ago. Calling to mind the “thin skull” rule, the jury may have believed that ordering someone to attack an 87-year-old man presents an unjustifiable risk of death, even if the risk were improbable.

The existence of the tort rule supports submitting the question to the finder of fact, especially in light of Appellant’s actions after the victim’s heart attack, which clearly manifested an extreme indifference to human life. The jury found against Appellant and I join Justice Wintersheimer in affirming the jury’s conclusion.

SCOTT, and WINTERSHEIMER, J.J., join this dissent.

Dissenting opinion by

Justice WINTERSHEIMER.

I must respectfully dissent from that part of the majority opinion that reverses the wanton murder conviction. The trial judge did not err in denying the motion for a directed verdict on wanton murder because there was substantial evidence that the death of the victim occurred while Turner was engaged in conduct which created a grave risk of death under circumstances manifesting an extreme indifference to human life.

The victim was found dead inside his home with a laceration on his scalp and an abrasion on his wrist. The residence was in disarray, apparently from a serious struggle. A crime scene photograph showed that the victim was found on the floor with his pants torn, blood stain on his clothing, a pair of scissors and a knife under his leg.

The cause of death was technically determined to be athrosporadic cardiovascular disease, sometimes known as coronary artery disease. Under all the circumstances surrounding the death, the medical examiner rendered an opinion that it was a homicide. Turner, her girlfriend Critten-don, and Crittendon’s son were all charged. The girlfriend pled guilty and testified against Turner. The trial has been called a swearing contest between the co-indictee and Turner — all the more reason to let a jury decide credibility.

The evidence indicates that Turner and two other defendants went to the home of the victim in order to borrow his car. When he refused to let them have it, Turner ordered Crittendon to take the victim’s keys. Crittendon did so, and in the process, the victim, an 87 year-old man, died sometime following the struggle. Certainly, the cardiac episode produced a fatal result for the victim, and it could reasonably be inferred that Turner was the cause. The keys were removed from the pocket of the victim apparently with such force that his pants were torn. There was testimony from the son of the victim that his father had been taking high blood pressure pills for three- or four years. The medical examiner reported that the victim was 5'5-l/2" tall, weighed 144 lbs., and had severe coronary disease in two of the three major coronary arteries of his heart. The medical examiner explained that if something happens to excite a person, or causes stress to a person who has coronary artery disease, it could make them have an irregular heartbeat.

When taken in the light most favorable to the prosecution, the evidence, albeit circumstantial, strongly suggests that there was a further assault on the victim while he was having the heart attack, and while it was apparent that he was having such an attack. The victim was not only physically abused, but was left having a heart attack without access to telephone, vehicle or any apparent method to summon help.

In her statement to the police, Turner indicated that she was aware that the telephone had been jerked from the wall. Under all the circumstances, it was extreme indifference to the value of human life in that Turner was present with a man, apparently suffering a heart attack or severe manifestations of heart disease, where his telephone had been disabled and his car keys taken only so that she and others may obtain liquor. The death occurred under circumstances creating a grave risk of death, and the circumstantial evidence shows that the victim incurred additional injury while exclusively with the defendant. A wanton murder instruction was appropriate. See Adcock v. Commonwealth, 702 S.W.2d 440 (Ky.1986). The standard for the sufficiency of the evidence to sustain a conviction is set out in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991), and in the federal case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

On appellate review of a motion for a directed verdict, we must consider the evidence as a whole and determine if it was clearly unreasonable for the jury to find guilt. If so, then the defendant is entitled to a directed verdict of acquittal. Benham, supra, at 187. Here, the evidence was substantive and sufficient to sustain a wanton murder conviction.

In ruling on a motion for a directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth, and then determine if such evidence is sufficient to induce a reasonable juror to find guilt beyond a reasonable doubt. Benham, 816 S.W.2d at 187. Here, the evidence was sufficient to support a finding of guilt beyond a reasonable doubt.

It cannot be said that any rational trier of fact could not have found the essential elements of the crime beyond any reasonable doubt. It was not error to deny the motion for a directed verdict of acquittal. The evidence here clearly justifies the wanton murder conviction. KRS 501.020(3) states in pertinent part “the risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

A trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. The trial judge was correct and this Court should not substitute its version of the evidence.

The judgment of conviction should be affirmed as to the wanton murder charge.

GRAVES and SCOTT, JJ„ join this dissenting opinion.


source: Caselaw Access Project

license: Public Domain

text:
    AK STEEL CORPORATION, Appellant, v. Thomas JOHNSTON; Hon. Irene Steen, Administrative Law Judge; and Workers’ Compensation Board, Appellees. and AK Steel Corporation, Appellant, Ray Allen; Hon. James L. Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0129-WC, 2004-SC-0162-WC.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      Christopher A. Dawson, Ashland, Counsel for Appellant.
    George C. Perry, III, Robert G. Miller, Jr., Perry, Preston and Miller, Paintsville, Counsel for Appellees, Thomas Johnston and Ray Allen.
   OPINION OF THE COURT

These appeals concern the construction of KRS 342.7305. Affirming decisions of the Workers’ Compensation Board (Board), which reversed in AK Steel Ctep. v. Thomas Johnston (2004-SC-0129-WC) and affirmed in AK Steel Corp. v. Ray Allen (2004-SC-0162-WC), the Court of Appeals has determined that age-related impairment is not excluded from an AMA impairment when calculating the income benefit for a noise-induced hearing loss. We affirm.

Thomas Johnston

It is undisputed that Mr. Johnston was exposed to hazardous noise repeatedly during his forty years’ employment in the defendant-employer’s steel mill as a maintenance inspector and repairman. He quit working in May, 2002, and subsequently filed a claim alleging an occupational hearing loss. When examined by Dr. Windmill, the university evaluator, Mr. Johnston was 59 years old.

Dr. Windmill evaluated the claimant and completed a Form 108-HL. He reported a 9% AMA impairment that within a reasonable medical probability was work-related. In response to a question whether any part of the impairment was due to the natural aging process, he replied, “Approximately 20% of Mr. Johnston’s hearing loss can be explained based on the natural aging process.”

When deposed, Dr. Windmill explained that when completing the Form 108-HL, he had estimated the effect of age-related factors by consulting tables that were appended to the hearing conservation amendment to the Federal Noise Control Act. He testified that the hearing loss chapter of the American Medical Association’s Guides to the Evaluation of Permanent Impaimient (Guides) does not account for age and that there is no specific test or method to separate various causes of hearing impairment in an individual. He stated that the tables were based on statistical averages and might or might not apply to Mr. Johnston because not all people have a hearing loss due to age. He explained that although the tables are not part of the Guides, the only way to estimate what portion of an impairment is due to aging is to use them. Using the tables, he had estimated that 20% of Johnston’s hearing loss was age-related, but he explained that was not to say that 20% of Johnston’s impairment was due to his age.

Ray Allen

It was undisputed that Mr. Allen was exposed to hazardous noise daily during the 35 years he worked in the defendant-employer’s steel mill. He quit working on January 31, 2002, and subsequently filed a claim alleging an occupational hearing loss. When evaluated by Dr. Windmill, the university evaluator, Mr. Allen was 60 years old.

As in the Johnston case, Dr. Windmill evaluated the claimant and completed a Form 108-HL. He reported an 8% AMA impairment that within a reasonable medical probability was work-related. In response to a question whether any part of the impairment was due to the natural aging process, he replied, “Approximately 25 to 30% of Mr. Allen’s hearing loss can be explained based on the natural aging process.”

When deposed concerning the method for estimating age-related impairment, Dr. Windmill explained that the tables that were appended to the hearing conservation amendment to the Federal Noise Control Act showed average hearing levels by age and that he had used the tables as a basis for his estimate of Mr. Allen’s age-related healing loss. Addressing the effect of age on hearing, Dr. Windmill explained that many factors cause ear damage over time such as noise, medications, chemicals, diet, and artery disease. The effects of such damage are generally measurable between the ages of 45-50 and increase progressively. Some age-related effects would be expected at age 60. Dr. Windmill stated, however, that an estimate that age accounted for 25% of Mr. Allen’s hearing loss did not mean that it accounted for 25% of his 8% AMA impairment because AMA impairment considers only hearing loss at the middle frequencies involved in speech. In his opinion, using the tables to apportion part of an AMA impairment to age is akin to comparing apples and oranges. Although it is not difficult to do, “It’s definitely speculative.” Asked whether he could state with reasonable medical probability that some portion of Mr. Allen’s impairment was not due to occupational noise exposure, he stated, “No.”

Discussion

KRS 342.0011 defines the term “injury” as follows:

(1) “Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not in-elude a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury.

KRS 342.730(l)(b) addresses the calculation of income benefits for permanent partial disability. It bases the amount of the benefit on the extent of the impairment caused by the injury as determined by the latest available edition of the Guides. Chapter 11 of the Fifth Edition addresses impairments of the Ear, Nose, Throat, and Related Structures. Section 11.2a concerns the criteria for rating impairment due to hearing loss. Id. at 246-47. It indicates that because tinnitus in the presence of a hearing impairment may impair speech discrimination, up to a 5% impairment should be added for tinnitus if the condition affects the patient’s ability to perform activities of daily living. It also indicates that no correction should be made for presbycusis, which Stedman’s Medical Dictionary 1135 (5th Unabridged Lawyers’ Edition 1982) defines as a loss of the ability to perceive or discriminate sounds that occurs with age but varies in pattern and age of onset. The Guides explain that impairment is rated without regal’d to its cause, that a correction for age would underestimate the true magnitude of the impairment, and that allocating an impairment to various causes is a separate matter from determining its magnitude. Id. at 247.

Effective December 12,1996, the legislature enacted KRS 342.7305, which specifically addresses occupational hearing loss due to hazardous noise. It provides, in pertinent part, as follows:

(1)In all claims for occupational hearing loss caused by either a single incident of trauma or by repetitive exposure to hazardous noise over an extended period of employment, the extent of binaural hearing impairment shall be determined under the latest available edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.”
(2) Income benefits payable for occupational hearing loss shall be as provided in KRS 342.730, except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person.
(3) The commissioner shall provide by administrative regulation for prompt referral of hearing loss claims for evaluation, for all medical reimbursement, and for prompt authorization of hearing enhancement devices.
(4) When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise shall be exclusively liable for benefits, (emphasis added).

KRS 342.0011(1) and KRS 342.730(l)(b) are general provisions. KRS 342.0011(1) establishes that work-related trauma must proximately cause a harmful change in order to be considered an injury and that the effects of the natural aging process are not to be considered an injury. A finding that a worker has sustained an injury entitles the individual to reasonable and necessary medical benefits without regard to whether the injury causes a permanent impairment. See Caldwell Tanks v. Roark, 104 S.W.3d 753 (Ky.2003). KRS 342.730(l)(b) bases the calculation of income benefits upon impairment that is determined under the Guides, which indicate that tinnitus warrants the addition of up to a 5% hearing impairment, that the magnitude of a hearing impairment is to be calculated without regard to its cause, and that the allocation of cause is a separate matter.

Although KRS 342.0011(1) generally defines a compensable injury, KRS 342.7305 is a specific and comprehensive provision addressing claims for traumatic hearing loss; therefore, it may be viewed as controlling such claims. Boyd v. C & H Transportation, 902 S.W.2d 823 (Ky.1995). Unlike KRS 342.0011(1), KRS 342.7305(4) makes no reference to the natural aging process and does not require direct proof of causation. Instead, it provides a rebut-table presumption that the worker’s impairment due to hearing loss is an injury upon proof of a pattern of hearing loss that is compatible with long-term hazardous noise exposure. If the employer fails to rebut the presumption, the worker is viewed as having met the burden to prove that work-related trauma proximately caused the harmful change for which benefits are sought, i.e., the AMA impairment.

Appellees Johnston and Allen sought income benefits based upon evidence of an AMA impairment due to hearing loss. Each produced evidence warranting a presumption that his impairment was a compensable injury. Although the university evaluator testified that tables have been compiled regarding the average hearing loss at particular ages and although he estimated that a portion of these workers’ hearing impairments was age-related, he also testified that not all individuals suffer from age-related hearing loss, that the only way to apportion the cause of hearing loss in an individual with occupational noise exposure is to use the tables, and that he could not state with certainty that an individual with such exposure actually had an age-related hearing loss. At issue is whether KRS 342.7305 permits a consideration of the entire AMA impairment due to hearing loss, without regard to age-related changes, or whether it requires part of the impairment to be excluded based upon evidence that part of the underlying healing loss is age-related. The question then becomes whether statistical evidence estimating age-related hearing loss partially rebuts KRS 342.7305(4)’s presumption that a worker’s entire impairment is work-related and requires an apportionment of causation.

KRS 342.7305(1) requires the amount of binaural hearing impairment to be determined under the Guides. KRS 342.7305 makes no reference to age-related changes, which are included in AMA impairment under the Guides; whereas, KRS 342.7305(2) creates an exception to the Guides by excluding impairment from tinnitus. Furthermore, it permits an income benefit only in those instances where the AMA impairment due to hearing loss equals or exceeds 8%.

Table 11-3, found on page 251 of the Fifth Edition of the Guides, indicates that a 98.9-100% binaural hearing impairment converts to a 35% AMA impairment and that a 21.5-24.5% binaural hearing impairment converts to an 8% AMA impairment. It is apparent, therefore, that the 8% threshold found in KRS 342.7305(2) represents a substantial binaural hearing impairment. When responding to the Form 108HL, Dr. Windmill estimated that 20% of Johnston’s hearing impairment and approximately 25-30% of Mien’s hearing impairment was age-related. Hence, even if one were to assume that they were among those individuals who suffer from age-related hearing loss as well as occupational hearing loss, the overwhelming majority of their hearing impairment was occupational. It appears, therefore, that the threshold limits income benefits to instances where the impairment is substantial and workplace trauma is likely to be a substantial cause. In view of KRS 342.7305’s explicit reliance on the Guides and KRS 342.7305(2)’s explicit provision to exclude tinnitus from an AMA impairment when calculating an income benefit, we are convinced that the legislature would have been equally explicit if it had intended for there to be another exclusion based upon age. Likewise, in view of Dr. Windmill’s testimony, we are not convinced that an AMA impairment based upon hearing loss must be apportioned between age-related and work-related causes absent an explicit provision in KRS 342.7305(4).

Each of these workers proved an AMA impairment that equaled or exceeded 8%; therefore, each was entitled to partial disability benefits that were based upon his AMA impairment. Mr. Allen was properly awarded a partial disability benefit that was based on his 8% impairment. Mr. Johnston’s claim was dismissed, however, and must be remanded for the ALJ to award an income benefit that is based upon his full 9% impairment.

The decision of the Court of Appeals in each of these appeals is affirmed.

All concur.


author: JOHNSON, Judge.

text:
    Charles Demetric JACKSON, Appellant, v. Vertner L. TAYLOR, Appellee.
    No. 2003-CA-000339-MR.
    Court of Appeals of Kentucky.
    Feb. 20, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.

      Charles Jackson, West Liberty, pro se.
    Brenn 0. Combs, Frankfort, KY, for appellee.
    Before COMBS, JOHNSON and MINTON, Judges.
   OPINION

JOHNSON, Judge.

Charles Demetric Jackson, pro se, has appealed from an order of the Franklin Circuit Court entered on January 16, 2003, which dismissed his petition for a writ of mandamus or, in the alternative, petition for a declaratory judgment or injunctive relief. Having concluded that the trial court did not err by dismissing Jackson’s petitions for relief, we affirm.

On November 21, 2001, Jackson appeared in Boyle Circuit Court and entered guilty pleas to three counts of assault in the first degree, and to two counts of assault in the second degree. On January 16, 2002, after a pre-sentence investigation had been completed, the trial court followed the Commonwealth’s recommendation and sentenced Jackson to concurrent, 15-year sentences for each of his three convictions for assault in the first degree, and to consecutive, ten-year sentences for each of his two convictions for assault in the second degree. Jackson’s sentences for his convictions for assault in the first degree were set to run concurrently with the sentences for his convictions for assault in the second degree, which resulted in a total sentence of 20 years’ imprisonment.

On December 2, 2002, Jackson filed in Franklin Circuit Court a pro se petition for a writ of mandamus or, in the alternative, petition for a declaratory judgment or in-junctive relief. Jackson noted that the Boyle Circuit Court did not specifically designate on his final judgment and sentence that he had been convicted of a Class B felony involving the death or serious physical injury of the victim. According to Jackson, KRS 439.3401(1) requires such an express designation in order for a person to be considered a “violent offender” under the statute. Jackson therefore asserted that he could not have been considered a “violent offender” and asked for the trial court to recalculate his sentence.

On January 8, 2003, Vertner L. Taylor, acting in his official capacity as Commissioner of the Kentucky Department of Corrections, filed a motion to dismiss Jackson’s petitions for relief. Taylor argued that despite the absence of specific language stating that Jackson had been convicted of a Class B felony involving the death or serious physical injury of the victim, Jackson could still properly be considered a “violent offender” under KRS 439.3401. On January 16, 2003, the trial court agreed with Taylor and dismissed Jackson’s petitions for relief. This appeal followed.

Jackson’s primary claim of error on appeal is that he could not have been considered a “violent offender” under KRS 439.3401. Specifically, Jackson notes that his final judgment and sentence does not expressly state that he was convicted of a Class B felony involving the death or serious physical injury of the victim. Hence, according to Jackson, since KRS 439.3401(1) states that “[t]he [trial] court shall designate in its judgment if the victim suffered death or serious physical injury,” he could not have been considered a “violent offender” under the statute. We disagree.

Pursuant to KRS 439.3401(1), a person is considered a “violent offender” if, inter alia, that person has been convicted of or has pleaded guilty to the commission of a “Class B felony involving the death of the victim or serious physical injury to a victim[.]” As we mentioned above, Jackson pled guilty to three counts of assault in the first degree, which is a Class B felony. Under KRS 508.010, 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 [emphasis added]; 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 injm°y to another person [emphasis added].

Therefore, under KRS 508.010, a conviction for assault in the first degree necessarily means that the victim suffered “serious physical injury.” Hence, when Jackson pled guilty to three counts of assault in the first degree, he effectively admitted that the victims of those offenses suffered serious physical injuries. Jackson is correct that KRS 439.3401(1) requires trial courts to designate in its judgment whether the victim of a Class B felony “suffered death or serious physical injury.” However, since a conviction for assault in the first degree necessarily means that the victim suffered “serious physical injury,” a conviction for assault in the first degree appearing on a defendants final judgment satisfies the statutes designation requirement. Accordingly, Jackson was properly considered a “violent offender” under KRS 439.3401.

In addition to claiming that he could not have been considered a “violent offender” under KRS 439.3401, Jackson has argued in his brief that his final judgment and sentence may not now be amended to specifically state that he was convicted of a Class B felony involving the death or serious physical injury of the victim. In support of this argument, Jackson relies upon the law of the case doctrine and separation of power principles. However, as we stated previously, even though Jackson’s final judgment did not expressly state that hie had been convicted of a Class B felony involving the death or serious injury of the victim, Jackson was still properly considered a “violent offender” under KRS 439.3401. Accordingly, since there is no need to amend Jacksons final judgment and sentence, we will not discuss these issues on appeal.

Finally, Jackson argues that KRS 439.3401 violates both the principles announced in Apprendi v. New Jersey, and the Eighth Amendment to the United States Constitution. However, since these issues were not raised before the trial court, we will not consider them for the first time on appeal.

Based on the foregoing, the order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes (KRS) 508.010. Assault in the first degree is a class B felony.

      . KRS 508.020. Assault in the second degree is a class C felony.

      . A prison inmates designation as a'"violent offender” is significant. For example, under KRS 439.3401(3), a violent offender "shall not be released on probation or parole until he has served at least eighty-five percent (85) of the sentence imposed.” In addition, under KRS 439.3401(4), a violent offender is subject to certain restrictions with respect to the earning of good-time credit during his incarceration.

      . See Taylor v. Commonwealth, Ky.App., 724 S.W.2d 223, 225 (1986)(stating that a defendant who enters an unconditional guilty plea “admits the factual accuracy of the various elements of the offenses with which ■ he is charged").

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the United States Supreme Court held that, inter alia, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. 530 U.S. at 490, 120 S.Ct. 2348.

      . U.S. Const, amend. VIII.

      . See Abuzant v. Shelter Insurance Co., Ky. App., 977 S.W.2d 259, 262 (1998)(holding that an issue not presented to the trial court would not be considered for the first time on appeal).


author: KNOPF, Judge.

text:
    Arif M. OMAR, M.D., FACC, Appellant, v. JEWISH HOSPITAL HEALTHCARE SERVICES, INC., and David R. Watkins, M.D., Appellees.
    No. 2003-CA-000255-MR.
    Court of Appeals of Kentucky.
    Feb. 27, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.

      Kent Masterson Brown, Christopher J. Shaughnessy, Lexington, KY, for appellant.
    Sharon K. Hager, Edward L. Schoen-baechler, Hall, Render, Killian, Heath & Lyman, P.S.C., Louisville, KY, for appel-lees.
    Before JOHNSON and KNOPF, Judges; -and MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

KNOPF, Judge.

On July 2, 2002, Dr. Arif Omar, M.D., resigned from the medical staff of Jewish Hospital in Louisville. By letter dated July 9, 2002, the hospital informed him that because the quality of his care was under investigation, the hospital was obliged by federal regulation to reject his resignation. The hospital was referring to the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§ 11101. et seq. As the hospital later acknowledged, the HCQIA does not impede Dr. Omar’s resignation, but it does require the hospital to report resignations tendered while the physician is under quality-of-care investigation to the Kentucky Board of Medical Examiners and the National Practitioners Data Bank. On August 8, 2002, Dr. Omar brought suit against the hospital and its medical staff seeking a declaration that he had not been under investigation when he resigned and an order enjoining the hospital from filing an HCQIA report. By order entered January 31, 2003, the Jefferson Circuit Court granted summary judgment for the hospital and dismissed Dr. Omar’s suit. It is from that ruling that Dr. Omar has appealed. He contends that the hospital and the trial court have misapplied the HCQIA. We disagree and affirm.

Dr. Omar, whose specialty is cardiology, was granted provisional staff privileges at Jewish in April 2001. His practice included interventions, such as cardiac catheteri-zations. In the spring of 2002, staff of the cardiac catheterization lab expressed concern over the quality of Dr. Omar’s care. These concerns came before the Departments of Medicine and Family Practice Quality Assessment and Improvement Committee (QA & I) at its meeting on May 1, 2002. The committee reviewed five of Dr. Omar’s cases and concluded that they presented “major quality of care concerns.” The committee recommended that, beginning immediately, all of Dr. Omar’s patient care be supervised and that all of his cases from the beginning of 2002 be submitted to independent review.

These recommendations were heard and adopted that same day, May 1, 2002, by a special adhoc committee of the Medical Executive Committee. Following the Medical Executive Committee’s meeting, the presidents of the hospital and the medical staff signed a letter to Dr. Omar, dated May 1, 2002, informing him of these developments and inviting him to address the Medical Executive Committee at its regular meeting on May 7, 2002. By letter dated May 2, 2002, the Chair of the QA & I Committee questioned Dr. Omar regarding the five cases the QA & I Committee had reviewed and advised him that all of his cases for the year were to be submitted to independent scrutiny.

On May 7, 2002, Dr. Omar and other cardiologists addressed the Medical Executive Committee concerning the five cases. At the conclusion of the meeting, the full committee adopted the recommendations of the special adhoc committee that Dr. Omar’s practice be reviewed and supervised.

In due course, an outside reviewer submitted a report, consideration of which was on the agenda of the Medical Executive Committee’s July 2, 2002, meeting. Shortly before the meeting commenced that afternoon, Dr. Omar tendered his resignation to the hospital and to the medical staff. At the meeting, the committee heard the report, which was critical of Dr. Omar’s practice, and concluded that the hospital would revoke Dr. Omar’s catheter-ization and other interventional privileges with the possibility of reinstatement upon Dr. Omar’s successful completion of additional training. It was the hospital president’s July 9, 2002, letter informing Dr. Omar of this decision and mentioning the hospital’s obligation under federal law that prompted Dr. Omar’s suit.

In 1986, Congress passed the HCQIA to facilitate the effective peer review of physicians. Among its purposes, the HCQIA seeks to prevent incompetent physicians from relocating without disclosure of their previous records. The HCQIA requires health care entities to report to the state Board of Medical Examiners and the National Practitioner Data Bank any professional review actions that adversely affect a physician’s clinical privileges for longer than thirty days, the physician’s name, the reason for the action, and other relevant information. That information is then made available to other health-care entities upon request if the physician applies for clinical privileges or appointment to a medical staff.

To prevent physicians from circumventing the reporting requirement by resigning in anticipation of an adverse professional review action, the Act also requires a report by

[e]ach health care entity which ... (B) accepts the surrender of clinical privileges of a physician (i) while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or (ii) in return for not conducting such an investigation or proceeding.

The hospital contends that under this provision of the HCQIA it is obligated to report Dr. Omar’s resignation. Dr. Omar maintains that this provision does not apply to him because he was not “under an investigation” when he resigned. Dr. Omar correctly notes that routine review of a physician’s cases does not trigger the HCQIA’s reporting requirements. He insists that the Medical Executive Committee did not comply with medical staff bylaws governing the commencement of investigations and therefore that the committee’s review of his practice must be deemed merely routine.

The trial court rejected this characterization, however, and ruled that even if the Medical Executive Committee faded to give Dr. Omar formal notice of an investigation as contemplated by the bylaws or denied him an opportunity to present information to the independent reviewer, the medical staffs and the hospital’s scrutiny of his practice clearly amounted to an investigation for the purposes of the HCQIA. We agree.

As the parties have noted, the HCQIA does not define “investigation,” but guidelines issued by the Department of Health and Human Services make it clear that Dr. Omar’s case was an investigation under the HCQIA and not merely an instance of routine case review. According to the guidelines, factors indicative of an investigation include scrutiny carried out by the health-care entity as opposed to an individual on the staff, scrutiny focused on the physician and • concerned with his professional competence, and scrutiny that is the precursor to a professional review action.

In Simpkins v. Shalala, upon which Dr. Omar relies, all of these factors favored the physician, who sought ex-pungement of an HCQIA report, as did the fact that none of the hospital’s bylaws regarding complaints had been invoked or complied with. Here, however, there was at most a technical failure to abide by the hospital bylaws regarding investigations, and all of the factors listed by the federal agency favor the hospital. The review was conducted by the entity, not by a staff member; it was focused on Dr. Omar’s competence, about which Dr. Omar’s peers had “major concerns”; and it was the precursor to a professional review action, a negative action in this case that was only foreclosed by Dr. Omar’s last-minute resignation. We agree with the hospital and the trial court that this is precisely the sort of resignation-under-investigation that the HCQIA requires to be reported.

Accordingly, we affirm the January 31, 2003, order of the Jefferson Circuit Court.

ALL CONCUR.

      . 42 U.S.C. § 11101(2).

      . 42 U.S.C. § 11133(a)(1)(A) & (C); 45 C.F.R. pt. 60.

      . 42 U.S.C. § 11137(a).

      . 42 U.S.C. § 11133(a)(1).

      . Simpkins v. Shalala, 999 F.Supp. 106 (D.D.C.1998).

      . National Practitioner Data Bank Guidebook, p. E-19.

      . 999 F.Supp. 106 (D.D.C.1998).

      . Although Dr. Omar was not served with a writing from the Medical Executive Committee stating "you are under investigation,” the committee did notify him in writing that it had serious concerns about his competence and was therefore undertaking a thorough review of his practice. The presidents’ letter of May 1, 2002, and the Medical Executive Committee decision of May 7, 2002, should have put Dr. Omar on notice that he was under investigation. The fact that the Committee did not seek additional comment from Dr. Omar following his presentation at the May 7 committee meeting does not suggest otherwise. The bylaws require only that the physician under investigation be interviewed as the investigator deems appropriate. That Dr. Omar was not invited to address the outside consultant does not violate this requirement and in no way suggests that the scrutiny of Dr. Omar's practice was merely routine.


author: McANULTY, Judge.

text:
    Clifford Eugene JEFFREY, Appellant, v. Naomi Gail Birley JEFFREY, Appellee.
    No. 2002-CA-000336-MR.
    Court of Appeals of Kentucky.
    April 9, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.
    Otis Doan Jr., Doan Law Office, Harlan, KY, for appellant.
    Gerald L. Greene, Greene & Lewis, Pineville, KY, for appellee.
    Before COMBS, KNOPF, and McANULTY, Judges.
   OPINION

McANULTY, Judge.

Clifford Jeffrey appeals from a default judgment of the Bell Circuit Court, granted in a divorce action to his former wife, Naomi Gail Birley Jeffrey. Clifford’s primary claim is that the circuit court lacked personal and subject matter jurisdiction to grant the divorce and divide the marital property. Having concluded that the circuit court had jurisdiction over this divorce action pursuant to Kentucky Revised Statutes (KRS) 454.220, we affirm.

Naomi and Clifford Jeffrey were married in West Virginia in 1956. They resided in Kentucky throughout the marriage, although for the last several years, Clifford worked in West Virginia. He returned to Kentucky on weekends and during vacations. Naomi and Clifford separated on September 26, 2001, after Naomi learned that Clifford had been having a long-term relationship with a woman who lived in West Virginia. After the separation, Clifford moved permanently to West Virginia. On October 10, 2001, Naomi filed a Petition for Dissolution of Marriage and an affidavit for the appointment of a warning order attorney in the Bell Circuit Court. A warning order was issued on the same day.

On November 6, 2001, Clifford petitioned for divorce in the Family Court of Cabell County, West Virginia. Although Clifford claims that he filed his petition in West Virginia prior to the commencement of the Bell County action, the report of the warning order attorney indicates that Clifford received notice of Naomi’s divorce petition on October 18, 2001, well before the date he filed his action in West Virginia.

The warning order attorney advised Naomi’s counsel that Clifford did not intend to enter an appearance or to contest the action in Kentucky. Naomi thereafter filed an amended petition stating that she and Clifford were both residents of Kentucky before their separation. The petition also stated that “the respondent [Clifford] is within the personal jurisdiction of the Court pursuant to KRS 454.220 and under that statute, the Kentucky Secretary of State is deemed the statutory agent for service of process.” Accordingly, on November 23, 2001, Clifford was served with a copy of the summons by the Secretary of State of Kentucky.

Clifford made no response to the summons, nor did he make a personal appearance in the Bell Circuit Court. On January 2, 2002, Naomi and Teresa Justice (Naomi and Clifford’s daughter) gave their depositions; they were filed in the circuit court on the same day. Naomi thereafter filed a motion for default judgment. On January 8, 2002, the Bell Circuit Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage. The circuit court divided Naomi and Clifford’s marital assets, awarding Naomi the marital residence, furniture, an automobile, a lump sum of $25,000 in maintenance, and a share of Clifford’s retirement fund. Clifford appealed the order on February 7, 2002.

Meanwhile, the West Virginia action, which had been stayed on September 18, 2001, pending the outcome of the Kentucky case, proceeded with a hearing on April 1, 2002, to determine Clifford’s residency. On January 9, 2003, the West Virginia Family Court entered an order holding that the Kentucky court did not have jurisdiction to adjudicate spousal support and marital assets located in West Virginia, and that Clifford could pursue those issues in West Virginia pursuant to the “divisible divorce” doctrine. Naomi appealed this order.

Clifford meanwhile had filed a motion pursuant to Rules of Civil Procedure (CR) 60.02 in Bell Circuit Court, seeking relief from the default judgment. There is no copy of this motion in the record. The motion was denied in an order entered on February 11, 2003. That order indicates that Clifford raised two issues in the CR 60.02 motion: he challenged the jurisdiction of the Bell Circuit Court and argued that inadequate notice was given of Naomi and Teresa’s depositions. Clifford then filed a “Motion for Reconsideration and Motion to Alter, Amend, or Vacate the Court’s Order of February 11, 2002.” These motions were also denied by the circuit court on May 6, 2003, on the grounds that such reconsideration was not permitted under the Civil Rules, and that Clifford’s proper avenue of redress was an appeal. Clifford failed to file a timely appeal of the denial of his CR 60.02 motion, however, and this Court denied his motion to add the latter two orders of the Bell Circuit Court to this appeal.

Finally, on April 28, 2003, the Circuit Court of Cabell County, West Virginia, reversed the order of the family court on the grounds that it had misapplied KRS 403.140 and the divisible divorce doctrine in its ruling.

Clifford raises four arguments on appeal. First, that the Bell Circuit Court lacked personal and subject matter jurisdiction to enter the default judgment; second, that default judgments are disfavored in Kentucky and that he should be afforded the right to present his case before the circuit court; third, that Naomi deceived the circuit court as to Clifford’s residency in Kentucky, thus leading it to base its jurisdiction on the mistaken belief that Clifford had resided in Kentucky for 180 days immediately prior to the filing of the initial divorce petition; and finally, that notice of the depositions of Naomi and their daughter was insufficient under CR 30.01.

In Kentucky, it is permissible to appeal directly from a default judgment. “However, the issue in such an appeal [is] limited to determining whether the pleadings were sufficient to uphold the judgment, or whether the appellant was actually in default.” Mingey v. Cline Leasing Service, Inc., Ky.App., 707 S.W.2d 794, 796 (1986) citing Rouse v. Craig Realty Co., 203 Ky. 697, 262 S.W. 1083 (1924).

The exception to this rule is that subject matter jurisdiction is “open for the consideration of the reviewing court whenever it is raised by any • party[.]” Commonwealth, Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525, 526-27 (1962).

Our review of the pleadings in this case shows them to be sufficient to uphold the default judgment. Moreover, Clifford has not challenged their sufficiency, except in his prehearing statement, where he listed as one of the issues to be addressed on appeal the “[v]agueness of pleadings making grant of relief in KY divorce inequitable and illegal.” He did not, however, pursue this issue in his appellate brief. Nor is there any question that Clifford was in default, nor does he contest that fact, except insofar as it relates to the circuit court’s jurisdiction.

The only issue that may be properly addressed in this appeal, therefore, is whether the Bell Circuit Court had jurisdiction over this divorce action.

Clifford argues that the Bell Circuit Court was without personal or subject matter jurisdiction to issue the default judgment because he is a resident of West Virginia. He claims that West Virginia, where he filed his action, has sole jurisdiction over the issues of equitable distribution and alimony. He accuses Naomi of fraud and perjury for stating that Clifford had been a resident of Kentucky for 180 days immediately prior to the filing of her divorce petition, arguing that this led the Circuit Court mistakenly to conclude in its judgment that “[t]he record establishes and this Court finds that both the petitioner and respondent were citizens and residents of Pineville, Bell County, Kentucky for at least 180 days prior to the filing of this action.”

Clifford does not indicate where in the record we may find evidence of Naomi’s alleged fraud and perjury. In fact, he admits that on at least two occasions she testified that Clifford ceased to be a resident of Kentucky on September 26, 2001, several days prior to the filing of her divorce petition.

Regardless, Clifford’s claim that the Bell Circuit Court was without jurisdiction because he had not resided in Kentucky for 180 days immediately prior to the filing of Naomi’s divorce petition is without merit, and rests on a misunderstanding of the requirements set out in KRS 403.140. Only one party to a divorce action is required to be a resident of Kentucky for the court to exercise jurisdiction to grant a dissolution of the marriage. KRS 403.140 states in relevant part:

(1) The Circuit Court shall enter a decree of dissolution of marriage if:
(a) The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition ...[.]

KRS 403.140(l)(a).

Clifford does not dispute the fact that Naomi was a resident of Kentucky for 180 days prior to the filing of her divorce petition. Under the statute, that is sufficient to give the circuit court jurisdiction to grant the dissolution. Even if Clifford’s allegations of fraud and perjury against Naomi were substantiated, it is unclear why she would have needed to deceive the circuit court on this point. Similarly, therefore, the circuit court’s finding that both parties had resided in Kentucky for 180 days prior to the filing of the petition was harmless error. Clifford claims that his case is directly parallel to that of Karahalios v. Karahalios, Ky.App., 848 S.W.2d 457, 459 (1993), in which the appellant asserted that the appellee had fraudulently procured the circuit court’s jurisdiction under KRS 403.140 by misrepresenting the duration of her residency in Kentucky. In Karahalios, however, one party did not reside in the state, and there was a controversy about the residency of the other party. There is no controversy about Naomi’s residency. This Court clearly stated in Karahalios that “KRS 403.140(l)(a) requires that at least one party to a dissolution of marriage action must have been residing in Kentucky for 180 days before filing a petition for divorce.” Karahalios, 848 S.W.2d at 459 (emphasis supplied). That requirement has been met by Naomi in this case.

In regard to the distribution of the marital property, Clifford relies on Gaines v. Gaines, Ky.App., 566 S.W.2d 814 (1978), to argue that the Bell Circuit Court was without jurisdiction to award maintenance or to distribute property located outside the state of Kentucky, such as his retirement account which is held by an insurance company in New York. Gaines stands for the proposition that a court does not have the authority to order the disposition of property outside the state if that court does not have in personam jurisdiction over the absent spouse. “[T]he court cannot enter an in personam order directed to an absent litigant to do some act with reference to personalty which is either within or without the state.” Gaines, 566 S.W.2d at 819. The holding in Gaines has been superseded, however, by the passage in 1992 of KRS 454.220, the marital long-arm statute. A divorce court in Kentucky may assert long-arm jurisdiction to distribute marital property, whether that property is located in Kentucky or elsewhere, if the nonresident respondent committed one of the predicate acts establishing grounds for personal jurisdiction in Kentucky within the statutory time limits set out in KRS 454.220. See L. Graham & J. Keller, 15 Kentucky Practice, Domestic Relations Law § 14.20, p. 407 (2nd ed.1997 & 2004 supp.). Kentucky’s long arm statute re-fleets the holding in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), and sets out four grounds for jurisdiction over non-residents:

A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards, or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time the demand is made, if this state was the matrimonial domicile of the parties before their separation; the defendant abandoned the plaintiff in this state; or the claim for support, alimony, maintenance, distributive awards, or special relief in matrimonial actions accrued under the laws of this state. The action shall be filed within one (1) year of the date the respondent or defendant became a nonresident of, or moved his domicile from, this state. Service of process may be made by personal service if the defendant or respondent is found within the state or by service through the use of KRS 454.210(3).

KRS 454.220.

The requirements of the statute were clearly met in this case. Kentucky was Clifford and Naomi’s matrimonial domicile, Clifford abandoned Naomi in Kentucky, and Naomi’s claim for relief accrued under the laws of Kentucky. The action was filed well within one year of the date Clifford moved his domicile from Kentucky to West Virginia. The Bell Circuit Court therefore had personal jurisdiction over Clifford and hence subject matter jurisdiction over the entire action.

Clifford has also argued that although service through the warning order attorney may have sufficed to create jurisdiction to grant the divorce, it was insufficient to permit the distribution of any marital property. The record clearly indicates, however, that Clifford also received notice from the Kentucky Secretary of State, fully in accordance with the procedure outlined in KRS 454.210(3). Clifford had ample notice of the Kentucky action, but simply chose not to participate.

Clifford’s remaining arguments, that the default judgment contravenes Kentucky’s policy of treating such judgments with disfavor, and that the notice requirements of CR 30.01 were not observed in providing notice of the depositions, are precluded from our consideration because, as we have already discussed, a default judgment may only be challenged on the sufficiency of the pleadings. We also note that Clifford previously raised the issue of deposition notice in his CR 60.02 motion and never appealed the denial of that motion by the circuit court. This Court has already denied his motion to join that petition and the circuit court’s order to this appeal. Clifford will not be permitted to circumvent our prior order.

The judgment of the Bell Circuit Court is affirmed.

ALL CONCUR.