Alex Dowell v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: August 16, 2018
• Docket: 2017-SC-0304
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 16, 2018 NOT TO BE PUBLISHED

2017-SC-000304-MR U ■ ' ' i U U Li 'vl \

ALEX DOWELL APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT V. HON. KEN HOWARD, JUDGE CASE NO. 16-CR-00540

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

One July evening. Appellant, Alex Lorenzo Dowell, and friends were

recklessly popping wheelies and doing donuts on four-wheelers and

motorcycles in the Towne Mall area. Officer Josh Burris of the Elizabethtown

Police Department responded to a call about the reckless ATV drivers. He

stopped them in the Towne Mall parking lot. Shortly thereafter. Officer Ronald

Caffee arrived to assist with the traffic stop. None of the drivers had

identification, so the officers asked for the men’s names and social security

numbers. Because Dowell had an outstanding warrant, he gave the police a

fake name, but his real social security number. While Officer Burris ran the drivers’ information in his cruiser, Dowell

began to start up his four-wheeler. Officer Caffee thrice requested that Dowell

not start his vehicle. In defiance, Dowell did so anyway and tried to flee.

Both officers ran after him. Officer Caffee grabbed Dowell by his shirt to

try to stop him, but he accelerated, which caused Officer Caffee to fall to his

knees and be dragged through a patch of grass. The officer managed to rise to

his feet again for a moment, but Dowell continued to accelerate and Officer

Caffee struck the pavement.

From there, he grabbed onto the rear of Dowell’s four-wheeler while

Dowell dragged him across the pavement, never letting off the throttle. Dowell

swerved hard to the right to drive out of the parking lot, hurling Officer Caffee

from the four-wheeler’s bumper. The officer hit pavement once more, this time

suffering serious, life-threatening injuries to his head and upper body. He

spent eight days in intensive care and sixth months in recovery.

Dowell fled, but was later apprehended at an ex-girlfriend’s residence.

He was indicted for first-degree assault, first-degree fleeing and evading,

reckless driving, and first-degree persistent felony offender (“PFO”). Aside from

reckless driving, a Hardin Circuit Court jury found Dowell guilty of all charges

and recommended a total sentence of 20 years’ imprisonment. The Hardin

Circuit Court accepted the recommendation and entered a judgment for 20

years. Dowell now appeals his conviction and sentence to this Court as a

matter of right pursuant to Section 110 of the Kentucky Constitution. Analysis

We first address Dowell’s motion for directed verdict. “On motion for

directed verdict, the trial court must draw all fair and reasonable inferences

from the evidence in favor of the Commonwealth.” Commonwealth v. Benham,

816 S.W.2d 186, 187 (Ky. 1991). “On appellate review [of a trial court’s ruling

on a defendant’s directed verdict motion], we must determine if, given the

totality of the evidence, ‘it would be clearly unreasonable for a juiy to find

guilt.’ If so, the defendant is entitled to a directed verdict of acquittal.”

Doneghy v. Commonwealth, 410 S.W.Sd 95, 102 (Ky. 2013) (citation omitted).

Clearly, Dowell’s act of fleeing from the police was the “but for” cause of

Officer Caffee’s injuries. Still, Dowell argues that, under Benham, the

Commonwealth failed to produce even a scintilla of evidence to convict him of

first-degree assault. We disagree. First-degree assault occurs when, “[ujnder

circumstances manifesting extreme indifference to the value of human life[,]

[the accused] wantonly engages in conduct which creates a grave risk of death

to another and thereby causes serious physical injury to another person.” KRS

508.010(l)(b).

A person acts “wantonly” when he is “aware of and consciously

disregards a substantial and unjustifiable risk that the result will occur or that

the circumstance exists.” KRS 501.020(3). The substantial and unjustifiable

disregarded 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.” Id. Thus, Dowell’s guilt depends upon whether Officer Caffee’s pursuit “was

either foreseen or foreseeable by Appellant as a reasonably probable result of

his own unlawful act of resisting arrest by fleeing from apprehension.”

Robertson v. Commonwealth, 82 S.W.Sd 832, 836 (Ky. 2002). This Court has

recognized that it is reasonably foreseeable to a traffic stop suspect that an

officer will pursue him if he flees police custody. Id.

Here, there was sufficient evidence, in the form of witness testimony and

video footage of the incident, that: (1) Dowell placed Officer Caffee in

substantial risk of death or serious physical injury; and (2) Dowell acted

wantonly, manifesting an extreme indifference to the value of human life. For

example. Officers Caffee and Burris audibly commanded Dowell not to start his

vehicle. Rather than listen, Dowell tried to flee, accelerating instead of slowing

down while he dragged Officer Caffee across the parking lot.

Instead of stopping to quit dragging the officer, Dowell continued to

accelerate, throwing Officer Caffee to the pavement and cracking his skull.

Accordingly, Dowell’s indifference to the value of human life can be inferred

from his conduct and the circumstances surrounding it. Craft v.

Commonwealth, 483 S.W.3d 837, 842 (Ky. 2016). Thus, based upon a totality

of the circumstances, we cannot say that the Hardin Circuit Court erred in

denying Dowell’s directed verdict motion.

Second, Dowell argues that the first-degree assault instruction was

erroneous because it permitted the jury to find him guilty of wanton assault

without finding he had a mens rea of wantonness. However, Dowell did not object to the jury instruction at trial. He failed to preserve his argument that

the jury instruction was erroneous, and, therefore, it is not properly before us

for review. Martin v. Commonwealth, 456 S.W.Sd 1, 11-12 (Ky. 2015). Thus,

our review on this issue is for palpable error, whereby we will reverse the trial

court only when manifest injustice has occurred. RCr 10.26.

Here, the trial court’s jury instructions were fashioned after this Court’s

precedent in Robertson. For instance, the only changes from the Robertson

model instructions on second-degree manslaughter were the Appellant’s name

and substituting “serious physical injury” for “death.” As the trial court clearly

followed this Court’s precedent in forming its jury instructions—to which both

parties acquiesced—we cannot say that palpable error exists.

Third, Dowell argues the evidence that he had an outstanding arrest

warrant when he was pulled over by Officer Burris—as well as evidence

surrounding his subsequent arrest—was irrelevant and unduly prejudicial.

Evidentiary issues are reviewed for an abuse of discretion. Goodyear Tire &

Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). A trial court abuses

its discretion if “the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999).

“The admission of ‘other acts’ evidence under KRE 404(b) is reviewed on

appeal for abuse of discretion: whether the trial judge's decision to admit the

evidence was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Gray v. Commonwealth, 534 S.W.3d 211, 213 (Ky. 2017) (internal citations omitted). To determine admissibility under KRE 404(b), trial courts

must test whether evidence presented is; (1) relevant; (2) probative of the crime

charged; and (3) not unduly prejudicial. Gray, 534 S.W.3d at 213-14.

In the case at bar, the Commonwealth introduced evidence of Dowell’s

outstanding arrest warrant pursuant to KRE 404(c). Dowell contended that

evidence of the warrant was impermissible under KRE 404(b). However,

evidence of an arrest warrant may be admissible to prove motive. KRE

404(b)(1). Here, the trial court admonished the jury to only consider Dowell’s

arrest warrant insofar as it may have tended to show motive on his part to flee

the traffic stop. Thus, we cannot say that the trial judge abused his discretion.

Evidence of Dowell’s flight and subsequent arrest were probative of facts

relating to his awareness of his outstanding warrant and his guilty motive for

fleeing the traffic stop. Doneghy, 410 S.W.3d at 105. Still, relevant evidence

may nonetheless be suppressed “if its probative value is substantially

outweighed by the danger of undue prejudice . . . .” KRE 403. Here, we cannot

say that Dowell suffered undue prejudice, because the evidence of his flight

and hide-out at his ex-girlfriend’s residence was offered under KRE 404(b)(1)

for “some other purpose” than proving his character. Specifically, it was

offered as evidence of his guilty conscience. Id. at 106. Thus, the trial judge

did not abuse his discretion in permitting evidence of Dowell’s arrest.

Fourth, Dowell argues that evidence of Officer Caffee’s pre-existing health

condition was improperly excluded, because it was relevant to causation and

foreseeability of his injuries. We review a trial court’s ruling on the

6 admissibility of expert testimony for an abuse of discretion. Garrett v.

Commonwealth, 534 S.W.3d 217, 221 (Ky. 2017).

Here, Dowell attempted to introduce Dr. Robert Granacher, Jr., as an

expert to specifically testify to the effect that a blood clot or pulmonary

embolism would have on Officer Caffee’s ability to run after Dowell. A medical

doctor may testify as an expert about medical phenomena. However, the trial

judge found that evidence Officer Caffee had a blood clot was irrelevant to the

crimes charged against Dowell. Garrett, 534 S.W.3d at 222; Robertson, 82

S.W.3d at 837. Without any evidence showing that Dowell was aware of Officer

Caffee’s physical condition, or that the officer’s physical condition was relevant

to the charges Dowell faced, we agree with the trial judge. There was no error.

Nothing about Officer Caffee’s pre-existing health impacted Dowell’s act

or the severity of the officer’s injuries. Officer Caffee’s health history was

irrelevant and properly excluded. Therefore, we cannot find that the trial judge

abused his discretion.

Finally, Dowell argues that his concurrent convictions for first-degree

assault and first-degree fleeing or evading the police violate double jeopardy.

This issue is unpreserved. Thus, we conduct palpable error review. RCr 10.26.

The inquiry in evaluating a double jeopardy claim is whether both crimes

require the same proof, or, alternatively, “whether each provision requires proof

of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299,

304 (1932). However, just because two instructions include common elements

7 does not mean they violate double jeopardy. McClain v. Commonwealth, 607

S.W.2d 421, 422 (Ky. 1980). Here, each instruction had different elements.

While the first-degree assault instruction mentions Dowell “unlawfully

fleeing police apprehension,” fleeing from the police is not an element of first-

degree assault. Rather, it merely described facts relevant to Dowell’s specific

case. See, e.g., Cope v. Commonwealth, 645 S.W.2d 703, 705 (Ky. 1983). The

first-degree assault instruction’s reference to his other crime of unlawful fleeing

does not amount to a double jeopardy violation. Grundy v. Commonwealth, 25

S.W.3d 76, 87 (Ky. 2000). Therefore, we find no palpable error here.

Conclusion

For the reasons stated herein, we hereby affirm the decision of the

Hardin Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Brandon Neil Jewell Assistant FTiblic Advocate

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Jesse Robbins Assistant Attorney General