RENDERED: AUGUST 16, 2018 TO BE PUBLISHED
I ■
2017-SC-000147-MR
DANIEL COX APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN HOWARD, JUDGE NO. 15-CR-00424
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A circuit court jury convicted Daniel Cox of the murder of his four-
month-old son, Jayceon Chrystie, and recommended a sentence of
imprisonment for life. Cox now appeals from the resulting judgment as a
matter of right, i raising two issues. Finding no reversible error, we affirm the
judgment.
I. BACKGROUND.
One evening, Daniel Cox drove to the home of Kimberly Chiystie,
Jayceon’s mother, and picked Jayceon up for a visit. Over the span of the next
two hours, Cox made a couple of stops at the home of family and friends before
Ky. Const. § 110(2)(b). Jayceon became fussy, and Cox decided to return him to Kimberly. Riding
home in a car seat in the back seat of Cox’s car, Jayceon cried nonstop. What
happened on that fateful drive to Kimberly’s home gave rise to the criminal
charge that Cox murdered his son.
Cox testified at trial that as he drove he turned around and shook and
rocked Jayceon’s car seat in an effort to calm him and stop him from crying. He
testified that the more Jayceon cried the harder he shook the car seat and that
the shaking lasted four to five seconds in duration. Cox denied hitting Jayceon.
Britton and Dena Stevenson, who were traveling the same highway that
evening, fell in behind Cox, who was en route to Kimberly’s home with Jayceon
in a car seat in the backseat. Dena testified at trial that she saw Cox swinging
back at something in the backseat. She testified that Cox’s car swerved over
into the opposite lane when the driver would swing. She saw this occurring for
a while before Britton also noticed the driver swinging and swerving. Dena
testified that she saw the driver swinging back at Jayceon several times and
shake Jayceon one time. Britton testified that he saw Cox strike Jayceon two or
three times and shake Jayceon forcefully.
As Cox got closer to Kimberly’s home, he noticed that Jayceon had gone
quiet. He saw that the infant was limp and that his eyes appeared to be rolling
back into his head.
When Cox arrived at Chrystie’s residence, he removed Jayceon from the
car seat, handed him to Chrystie, and apologized to her, telling her he did not mean to hurt Jayceon. Cox told Chrystie that Jayceon had fallen out of his car
seat.
Upon seeing her child, Chrystie noticed he was not strapped into the car
seat, was not breathing, and his eye was swollen. She called 911 while one of
her neighbors attempted CPR. The police arrived and took over. Jayceon was
transported first to the local hospital and then to a Louisville hospital, where
he died two days later. Police arrested Cox soon after he left Kimberly’s
residence.
At trial, the Commonwealth introduced text messages sent by Cox to
Kimberly less than three days before the incident. Because excerpts of some of
these messages are the subject of one of the issues Cox has raised on appeal,
we reproduce them below:
1. 1 didn’t want the lil whining bastard. U spit the bitch out you deal with him.
2. 1 didn’t want the drooling bastard. 1 tried to get u to abort the water head crying faggoting bitch. Nothing that’s going on in his life interest me. If he dead or living is no concern to me.
3. I didn’t hit u with that because I don’t give fuck if I see him or not. [He] ain’t shit to me. I didn’t want him anyway and I have a choice if I wanna fuck with the jughead bitch. I don’t want u to try with me. Fuck him. Let’s sign over rights. I don’t want no dealings with that retarded looking ass boy. Fuck [him]. I didn’t want the crying big head ass baby and I don’t want him.
4. Fuck that jaw humongous head bitch that you call yo son. I can’t stand that bastard. I can’t stand yo ass. I hate you and that retarded ass boy.
5. I don’t want you I don’t want [him]. The Commonwealth presented expert medical testimony at trial. One
doctor testified Jayceon died of an inflicted closed-head injury, inconsistent
with a fall from a car seat, blunt trauma to both eyes and bruising in the
recessed portion of his eyes, and a massive intracranial insult resulting in
internal bleeding over the top of his brain, causing him to stop breathing. The
doctor testified that Jayceon’s injuries were consistent with being struck, and
not from a fall or from a baby being shaken. Another doctor testified that, in
her medical opinion, Jayceon suffered from inflicted physical abuse.
II. ANALYSIS.
A. The jury instructions did not violate Cox’s right to a unanimous jury verdict.
Cox first argues that the trial court erred when its instructions to the
jury failed to require the jury reach a unanimous decision on the specific
physical act by Cox that caused Jayceon’s death. That this issue is preserved
for our review is undisputed.
The jury instruction on murder in this case stated the following:
You will find the Defendant guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That ... the Defendant, by hitting, shaking or both, killed Jayceon Christie; AND
B. That in so doing:
(1) He caused the death of Jayceon Christie intentionally; OR
(2) He was wantonly engaging in conduct which created a grave risk of death to Jayceon Christie and thereby caused the death of [his son] under circumstances manifesting an extreme indifference to human life. The jury found Cox guilty under this instruction.
Cox challenges the jury instruction for its inclusion of the phrase,
“hitting, shaking or both.” Cox essentially argues that this instruction is flawed
because it failed to require all twelve members of the jury to identify the
specific physical act by Cox that caused Jayceon’s death.2 We reject Cox’s
argument that principles of jury unanimity require such specific fact-finding by
the jury.
In Martin v. Commonwealth, this Court identified the two types of
“unanimous-verdict violations.’’^ “The first type ... occurs when multiple counts
of the same offense are adjudicated in a single trial.Id. This type is not at
issue in this case because Cox was charged with only one count of murder.
The second type “occurs when a jury instruction may be satisfied by
multiple criminal acts by the defendant.’’^ More specifically, this requirement
“is violated when ‘a general jury verdict [is] based on an instruction including
two or more separate instances of a criminal offense, whether explicitly stated
in the instruction or based on the proof.’’’^ This type of unanimous-jury
violation is also not at issue here because only one murder occurred.
2 “Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases.” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978) (internal citations omitted). 3 456 S.W.Sd 1, 6 (Ky. 2015). 4 Id. 3 Id. at 7. 3 Id. at 6-7 (quoting Johnson v. Commonwealth, 405 S.W.Sd 439, 449 (Ky. 2013)). A seemingly third type of unanimity error also appears to exist in our
jurisprudence—a potential violation of unanimity stemming from a
“combination jury instruction.” “A ‘combination’ instruction permitting a
conviction of the same offense under either of multiple alternative theories does
not deprive a defendant of his right to a unanimous verdict, so long as there is
evidence to support a conviction under either theory.”^ “It is not necessary that
a jury, in order to find a verdict should concur in a single view of the
transaction disclosed by the evidence. If the conclusion may be justified upon
either of two interpretations of the evidence, the verdict cannot be impeached
by showing that a part of the jury proceeded upon one interpretation and part
upon the other ... .”8
For additional guidance, as we have done so before,^ we turn to the U.S.
Supreme Court’s explanation of this issue:
Crimes are made up of factual elements, which are ordinarily listed in the statute that defines the crime. A (hypothetical) robbery statute, for example, that makes it a crime (1) to take (2) from a person (3) through force or the threat of force (4) property (5) belonging to a bank would have defined the crime of robbery in terms of the five elements just mentioned. Calling a particular kind of fact an “element” carries certain legal consequences. The consequence that matters for this case is that a jury in a ...
Robinson v. Commonwealth, 325 S.W.3d 368, 370 (Ky. 2010) (citing Johnson u. Commonwealth, 12 S.W.3d 258, 265-66 (Ky. 1999)); Miller u. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002)). 8 Wells V. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978). 9 See Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (examining federal law to assist in defining the unanimity concept). 10 Almendarez-Torres v. United States, 523 U.S. 224, 249 (1998). criminal case cannot convict unless it unanimously finds that the Government has proved each element.
[A] ... jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime. Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement—a disagreement about means—would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force,
As the U.S. Supreme Court has made clear, whether a unanimous verdict
violation stems from a “combination jury instruction” first depends on whether
a particular kind of fact constitutes a “factual element^] ... listed in the statute
that defines the crime.”
At its most basic definition of Murder, KRS 507.020(l)(a) states, “A
person is guilty of murder when: With intent to cause the death of another
person, he causes the death of such person ... .” At its core, a conviction for
murder requires the Commonwealth to prove beyond a reasonable doubt that
the defendant (1) intended to cause the death of another person and (2) did
indeed cause the death of that person.
A conviction for murder, according to the statute, does not require the
fact-finder to determine the precise physical act of Cox that was the actual
cause of Jayceon’s death. All that must be shown, to satisfy the element of
11 Johnson u. Louisiana, 406 U.S. 356, 369-71 (1971) (Powell, J., concurring); Andres V. United States, 333 U.S. 740, 748 (1948). 12 Richardson v. U.S., 526 U.S. 813, 817-18 (1999) (internal citations omitted). causation under the statute, is that the defendant did something to cause the
death of the victim.
What Cox argues in this case is that the jury instructions did not force
the jury to agree upon the specific physical act that Cox performed to cause
Jayceon’s death. But the specific physical act that Cox performed to cause
Jayceon’s death is not the “factual element^ ... listed in the statute that defines
the crime;” rather, causing the death is.
The dispute as to the specific physical act that Cox performed to cause
the death of his son is “a disagreement about means” that “[does] not matter”
because “all 12 jurors unanimously concluded that the [Commonwealth] had
proved the necessary related element, namely, that” Cox caused Jayceon’s
death. The jury instruction, while providing the jury with Cox’s multiple acts
directed at Jayceon to choose from, as described by the trial testimony, forced
the jury to agree unanimously that Cox did something to cause Jayceon’s
death, causation being the “factual element[] ... listed in the statute that
defines the crime.” Because the jury instructions forced the jury to unanimous
agreement that Cox caused Jayceon’s death, regardless of the specific means,
no unanimity error occurred because of the inclusion of the phrase “hitting,
shaking or both.”
Cox also challenges the jury instruction for its inclusion of an instruction
allowing the jury to consider both intentional and wanton murder in the same
instruction. Possessing the requisite “intent” to murder is a “factual element[]
... listed in the statute that defines the crime[,]” so we must determine whether
8 a “combination jury instruction” unanimity error has occurred. However, we
find no error here because sufficient evidence exists in this case to convict
under both theories of culpability.
KRS 501.020 defines the various criminally culpable states of mind. KRS
501.020(1) states, “A person acts intentionally with respect to a result or to
conduct described by a statute defining an offense when his conscious
objective is to cause that result or to engage in that conduct.” KRS 501.020(3)
states, “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.”
Here, the evidence supports a conviction under either mental state. Two
witnesses testified to having seen Cox hit Jayceon multiple times, specifically,
swinging back at him several times, and shaking him a few times forcefully.
Cox himself admitted to shaking Jayceon’s car seat several times, shaking it
harder the more the baby cried. Cox never called 911, although he testified
that he did not do so because he panicked. Cox then handed Jayceon over to
Kimberly, lying about what happened, telling her he did not mean to hurt him,
and fleeing the scene. The medical testimony suggests severe physical abuse.
And the text message evidence, sent by Cox to Kimberly less than three days
before the incident, potentially sheds light on Cox’s mental state during the events in question. Based on all this evidence, it is reasonable for a jury to
have inferred an intentional or wanton mental state. “Intent can be inferred
from the actions of an accused and the surrounding circumstances. The jury
has wide latitude in inferring intent from the evidence.”^3
Lastly, Cox alleges that the trial court committed reversible error by
failing to issue a bifurcated instruction of intentional and wanton murder. But,
as Cox himself notes, this Court has twice considered this issue, failing to find
reversible error in both instances, i* We are especially inclined to reject Cox’s
argument because he has conceded that this error was unpreserved, which we
review for palpable error. We find no error, palpable or otherwise, in the trial
court’s combining of the intentional and wanton murder instructions, in
accordance with Hudson and Benjamin.
B. The trial court did not commit reversible error when it admitted certain evidence of text messages.
Cox alleges that the trial court committed reversible error when it
allowed his disturbingly explicit text messages to be admitted into evidence.
Specifically, Cox alleges that the text messages should have been excluded
under Kentucky Rules of Evidence (“KRE”) 404(b) and 403. That this issue is
preserved for our review is undisputed.
13 Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988) (citing Rayburn v. Commonwealth, 476 S.W.2d 187 (Ky. 1972)). 14 See Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998); see also Benjamin V. Commonwealth, 266 S.W.3d 775, 784-85 (Ky. 2008).
10 “The standard of review of an evidentiary ruling is abuse of discretion.
“The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’’^^
KRE 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
KRE 403'states: “Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of undue prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.”
Regarding Cox’s KRE 404(b) argument, the trial court, in a written order
responding to Cox’s motion in limine, stated that it was allowing the text
messages to be submitted into evidence because they were “probative of motive,
intent or absent [sic] of mistake or accident.” We cannot say that the trial court
abused its discretion by allowing evidence of these text messages on that basis.
Anderson u. Commoniuealth, 231 S.W.3d 117, 119 (Ky. 2007). 16 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
11 Cox testified at trial that all he did was shake his son’s car seat, that he
did not strike Jayceon, and that he did not mean to kill him. He also told
Kimberly that Jayceon simply fell out of his car seat. But the text messages
tend to belie Cox’s claim that the ultimately fatal injuries he inflicted upon
Jayceon were a mistake or accident. The messages also assist in showing that
Cox really did possess the intent and motive to inflict serious injury and even
death upon his son. “Generally, evidence of... animosity of the defendant
against the victim is admissible as evidence of motive, intent or identity ... .’’i’’
Cox attempts to analogize this case to our decision in Rucker v.
Commonwealth, a decision in which we found reversible error in the admission
of certain evidence in violation of KRE 404(b). is In Rucker, the evidence at issue
was Facebook messages, sent by the defendant after the victim’s death,
showing the defendant engaging in sexually explicit conversations with
multiple women and sending two sexually explicit photographs to them.^^ We
determined that “Rucker’s sexually explicit communications to various women
were not probative of his state of mind regarding crimes that had already been
committed against his former girlfriend.”20 Unlike the situation in Rucker, here,
Cox’s text messages show animosity toward the victim, upon whom he inflicted
physical abuse and death, sent less than three days before the incident. As
17 Davis V. Commonwealth, 147 S.W.3d 709, 722 (Ky. 2004) (citing Goodman v. Commonwealth, 285 S.W.2d 146, 149 (Ky. 1955)). 18 521 S.W.3d 562, 570 (Ky. 2017). 19 Id. at 568. 20 Id. at 569.
12 stated, the submission of such evidence is proper under KRE 404(b) because it
sheds light on Cox’s motive and intent and the absence of mistake or accident.
Additionally, we cannot say that the trial court abused its discretion in
allowing the evidence of the messages over a KRE 403 objection. The messages
had high probative value, tending to show that Cox may have harbored the
intent and motive to inflict serious injury and death upon Jayceon and that the
child’s death did not result from an accident or mistake. This high probative
value cannot be said to be outweighed by any, much less substantial, undue
prejudice.
Cox argues that the probative value of the text messages was diminished
by the already substantial evidence on the same point. But none of the other
evidence sheds light on Cox’s expressions of animosity toward Jayceon, which
speaks directly to his motive and intent for beating and killing him, in addition
to showing an absence of mistake or accident.
Cox also argues that the trial court failed to conduct a KRE 403 analysis
because there is no mention in any written order of the trial court’s having
engaged in the KRE 403 balancing analysis. But Cox cannot point to a single
case demonstrating that this Court has found reversible error in an analogous
situation. Cox cites Hall v. Commonwealth for this proposition, but Hall does
not stand for such a rule.21 We also do not require trial courts to make detailed
21 468 S.W.3d 814 (Ky. 2015) In Hall, the Court determined that certain evidence should not have been admitted and only commented that “the absence of specific findings in the record explaining the trial court’s reasons for its decision” provided further support for its conclusion. Id. At 827.
13 written findings to support the many evidentiary rulings they must make in the
course of a trial.
And, as the Commonwealth notes, the trial court admonished the jury
that “[t]he text message are admissible for a limited purpose. That purpose is to
prove, if it does so, motive, intent or absence of mistake or accidence on behalf
of Mr. Cox. The evidence shall not be used for any other purpose.” This
admonition alerted the jury to refrain from using the text-message evidence for
any other purpose, including the improper purposes listed in KRE 403, than
helping to prove Cox’s motive or intent and the absence of mistake or accident
in this case.22 So by this admonition, the danger of undue prejudice, if any,
was mitigated properly by the trial court.
III. CONCLUSION.
Finding no reversible error, we affirm the judgment of conviction and
sentence.
All sitting. All concur.
22 “A jury is presumed to follow an admonition....” Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
14 COUNSEL FOR APPELLANT:
Erin Melchior Melchior law Office
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General