'
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO JHE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS,· RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.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: APRIL 27, 2017
""uprnnt ~foutf nf ~~~[, 2016-SC-000069-MR ·
JAMES R. O'BANNON, JR. [Q)ffi\LI~ 5/lr-/17 J<,;., @J~r,,Dc. APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE A.C. MCKAY CHAUVIN, JUDGE NO. 14-CR-000776
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On March 14, 2014, Appellant, James O'Bannon, Jr., while .driving in
Jefferson County, Kentucky, disregarded a stop sign, and struck a minivan
carrying one adult, three teenagers, and two infant children_ One of the infants
died from ~er resulting injuries, while the other. infant sustained a skull
fracture. The driver of the van and the teenagers suffered non-life threatening
injuries. Blood tests were administered to Appellant shortly after the accident,
revealing the presence of marijuana and a blood alcohol level well over the legal
limit.
On March 26, 2014, a Jefferson County Grand Jury indicted Appellant.
On October 23, 2015, a Jefferson Circuit.Court Jury found Appellant guilty of
murder, two counts of first-degree assault, one count of second-degree assault, . -- and two counts of wanton endangerment, operating a motor vehicle while
intoxicated, and being a persistent felony offender in the first degree. The jury
recommended that Appellant serve twenty-five years for murder, ten years for
two counts of first-degree assault, five years for seconq_-degree assault, and one
year for both charges of first-degree wanton endangerment, enhanced to
twenty-five years for being a persistent felony offender, with the sentences to
run concurrently for a total of twenty-five years' imprisonment. The trial court
sentenced Appellant in conformity with the jury's recommended sentence.
Appellant now appeals his conviction and sentence as a matter ofright
pursuant to§ 1,10(2)(b) of the Kentucky Constitution.
Appellant's first assignment of error is that the trial court failed to
provide the jury with the proper instructions for first-degree assault. More
specifically, Appellant complains that the jury instructions failed to include
language that Appellant acted under circumstances manifesting extreme
indifference to the value of human life. Appellant concedes that this issue is
unpreserved for our review. Nonetheless, Appellant requests that this Court
review the matter for palpable error pursuant to Kentucky Rules of Criminal
Procedure ("RCr") 10.26.
This Court has long held that "[i]n a criminal case, the Constitution of
the United States mandates the government must prove every element of the
charged offense beyond a reasonable doubt." Anderson v. Commonwealth, 352
S.W.3d 577,581 (Ky. 2011) (citing In re Winship, 397 U.S. 358,364 (1970)). In
Kentucky Revised Statutes ("KRS") 508.010, the following requisite elements for
2 the crime of assault in the first degree are set forth: "Under circumstances
manifesting extreme indifference to the value of human life [a person] wantonly
engages in conduct which creates a grave risk of death to another and thereby
causes serious physical injury to another person."
The trial court's instruction to the jury read as follows:
You shall find Mr. O'Bannon guilty under this instruction if ... (1) That in this county on or about March 14, 2014, Mr. O'Bannon caused serious physical injury* to [the victim] when he drove a truck into a van in which she was a passenger; -and- (2) That at the time the injury occurred, Mr. O'Bannon was wantonly* engaged in conduct which created a grave risk of death to another.
*"Wantonly''- A person acts wantonly with respect to a result or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exists. 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.
It is apparent that the phrase "under circumstances manifesting extreme
indifference to the- value of human life" is missing from the jury's instructions.
This phrase describes the aggravated level of wantonness which differentiates
first-degree assault from the lesser offense of second-degree assault. KRS
508.010; see Bell v. Commonwealth, 122 S.W.3d 490, 496 (Ky. 2003). As the
statute proscribing the crime of first-degree assault necessitates, the
Commonwealth was required to demonstrate beyond a reasonable doubt that
Appellant possessed more than just a wanton state of mind, and that he acted
wantonly with extreme indifference to human life. Consequently, we find error
with the trial court's instructions.
3 Despite the erroneous jury instructions, we do not believe Appellant
suffered prejudice. Appellant's charges were predicated on the single criminal
act of driving impaired. It is from this particular action that the resulting
injuries and charges occurred-murder for the death of one passenger:, assault
for the three seriously injured passengers, and wanton endangerment for the
remaining passenger and driver. The jury instructions for the murder and
wanton endangerment charges required a finding that Appellant acted "under
circumstances manifesting an extreme indifference to human life." The jury
found the Appellant guilty beyond a reasonable doubt on those charges.
Thusly, the jury did in fact evaluate Appellant's state of mind with respect to
his decision to drive overtly impaired and found that he acted with a
heightened level of wantonness. Consequently, Appellant has failed to
demonstrate that he has suffered a manifest injustice requiring reversal of his
convictions. There was no palpable error.
Appellant also argues that the trial court committed reversible error
when it permitted Dr. Mary Fallat to testify regarding the injuries of one of the
teenage passengers, Dasia Frazier. Once more, Appellant acknowledges that
this issue is unpreserved and requests palpable error review.
The Commonwealth's witness, Dr: Fallat, is a pediatric surgeon who was
working at the hospital where the five minors were treated following the
accident. Dr. Fallat treated two of the victims, but she did not personally treat
Dasia. For that reason, Dr. Fallat relied upon Dasia's hospital records and
interpreted the findings to the jury. Appellant now complains that the trial
4 court erred in allowing Dr. Fallat to testify regarding Dasia's injuries because
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'
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO JHE 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: APRIL 27, 2017
""uprnnt ~foutf nf ~~~[, 2016-SC-000069-MR ·
JAMES R. O'BANNON, JR. [Q)ffi\LI~ 5/lr-/17 J<,;., @J~r,,Dc. APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE A.C. MCKAY CHAUVIN, JUDGE NO. 14-CR-000776
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On March 14, 2014, Appellant, James O'Bannon, Jr., while .driving in
Jefferson County, Kentucky, disregarded a stop sign, and struck a minivan
carrying one adult, three teenagers, and two infant children_ One of the infants
died from ~er resulting injuries, while the other. infant sustained a skull
fracture. The driver of the van and the teenagers suffered non-life threatening
injuries. Blood tests were administered to Appellant shortly after the accident,
revealing the presence of marijuana and a blood alcohol level well over the legal
limit.
On March 26, 2014, a Jefferson County Grand Jury indicted Appellant.
On October 23, 2015, a Jefferson Circuit.Court Jury found Appellant guilty of
murder, two counts of first-degree assault, one count of second-degree assault, . -- and two counts of wanton endangerment, operating a motor vehicle while
intoxicated, and being a persistent felony offender in the first degree. The jury
recommended that Appellant serve twenty-five years for murder, ten years for
two counts of first-degree assault, five years for seconq_-degree assault, and one
year for both charges of first-degree wanton endangerment, enhanced to
twenty-five years for being a persistent felony offender, with the sentences to
run concurrently for a total of twenty-five years' imprisonment. The trial court
sentenced Appellant in conformity with the jury's recommended sentence.
Appellant now appeals his conviction and sentence as a matter ofright
pursuant to§ 1,10(2)(b) of the Kentucky Constitution.
Appellant's first assignment of error is that the trial court failed to
provide the jury with the proper instructions for first-degree assault. More
specifically, Appellant complains that the jury instructions failed to include
language that Appellant acted under circumstances manifesting extreme
indifference to the value of human life. Appellant concedes that this issue is
unpreserved for our review. Nonetheless, Appellant requests that this Court
review the matter for palpable error pursuant to Kentucky Rules of Criminal
Procedure ("RCr") 10.26.
This Court has long held that "[i]n a criminal case, the Constitution of
the United States mandates the government must prove every element of the
charged offense beyond a reasonable doubt." Anderson v. Commonwealth, 352
S.W.3d 577,581 (Ky. 2011) (citing In re Winship, 397 U.S. 358,364 (1970)). In
Kentucky Revised Statutes ("KRS") 508.010, the following requisite elements for
2 the crime of assault in the first degree are set forth: "Under circumstances
manifesting extreme indifference to the value of human life [a person] wantonly
engages in conduct which creates a grave risk of death to another and thereby
causes serious physical injury to another person."
The trial court's instruction to the jury read as follows:
You shall find Mr. O'Bannon guilty under this instruction if ... (1) That in this county on or about March 14, 2014, Mr. O'Bannon caused serious physical injury* to [the victim] when he drove a truck into a van in which she was a passenger; -and- (2) That at the time the injury occurred, Mr. O'Bannon was wantonly* engaged in conduct which created a grave risk of death to another.
*"Wantonly''- A person acts wantonly with respect to a result or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exists. 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.
It is apparent that the phrase "under circumstances manifesting extreme
indifference to the- value of human life" is missing from the jury's instructions.
This phrase describes the aggravated level of wantonness which differentiates
first-degree assault from the lesser offense of second-degree assault. KRS
508.010; see Bell v. Commonwealth, 122 S.W.3d 490, 496 (Ky. 2003). As the
statute proscribing the crime of first-degree assault necessitates, the
Commonwealth was required to demonstrate beyond a reasonable doubt that
Appellant possessed more than just a wanton state of mind, and that he acted
wantonly with extreme indifference to human life. Consequently, we find error
with the trial court's instructions.
3 Despite the erroneous jury instructions, we do not believe Appellant
suffered prejudice. Appellant's charges were predicated on the single criminal
act of driving impaired. It is from this particular action that the resulting
injuries and charges occurred-murder for the death of one passenger:, assault
for the three seriously injured passengers, and wanton endangerment for the
remaining passenger and driver. The jury instructions for the murder and
wanton endangerment charges required a finding that Appellant acted "under
circumstances manifesting an extreme indifference to human life." The jury
found the Appellant guilty beyond a reasonable doubt on those charges.
Thusly, the jury did in fact evaluate Appellant's state of mind with respect to
his decision to drive overtly impaired and found that he acted with a
heightened level of wantonness. Consequently, Appellant has failed to
demonstrate that he has suffered a manifest injustice requiring reversal of his
convictions. There was no palpable error.
Appellant also argues that the trial court committed reversible error
when it permitted Dr. Mary Fallat to testify regarding the injuries of one of the
teenage passengers, Dasia Frazier. Once more, Appellant acknowledges that
this issue is unpreserved and requests palpable error review.
The Commonwealth's witness, Dr: Fallat, is a pediatric surgeon who was
working at the hospital where the five minors were treated following the
accident. Dr. Fallat treated two of the victims, but she did not personally treat
Dasia. For that reason, Dr. Fallat relied upon Dasia's hospital records and
interpreted the findings to the jury. Appellant now complains that the trial
4 court erred in allowing Dr. Fallat to testify regarding Dasia's injuries because
her opinion was not based on her own personal perception and the testimony
constituted hearsay. Since Dr. Fallat's testimony is the only evidence
concerning the extent of Dasia's injuries, Appellant contends that there was
not enough evidence to convict him of first-degree assault.
Appellant relies on ample case law to support his argument. However,
all of those cases concern the admission of lay testimony, not expert testimony.
Appellant has not provided us with any precedential authority dictating that an
expert witness must have personally perceived the injuries of a patient in order
to testify to that patient's injuries and treatment. On the contrary, Kentucky
Rules of Evidence ("KRE") 702 permits expert opinion testimony based upon
out-of-court documents, such as medical records. Moreover, KRE 703 allows a
testifying expert to rely on materials, including inadmissible hearsay, in
forming the basis of his or her opinion.
Furthermore, we find merit in the Commonwealth's assertion that
Appellant's failure to object to Dr. Fallat's testimony was strategic. At no point
during the trial did Appellant attempt to contest the existence or extent of
Dasia's injuries, nor did Appellant choose to cross-examine Dr. Fallat. As the
Commonwealth points out, Appellant likely chose not to draw the jury's
attention to the extent of Dasia's injuries. In Commonwealth v. Rieder, this
Court explained that "when an objection is not voiced by the appellant's
counsel at trial, we are left to wonder if trial strategy might be the motivating
force for remaining silent." 474 S.W.3d 143, 147 (Ky. 2015). In this regard,
5 the Court ordinarily bounds a defendant to trial counsel's strategic and tactical
decisions. West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) ..
In Chavies v. Commonwealth, we stated that a palpable error is that
which is "so egregious that it jumps off the page . . . and cries out for relief."
374 S.W.3d 313, 322-23 (Ky. 2012) (quoting Alford v. Commonwealth, 338
S.W.3d 240, 251 (Ky. 2011) (Cunningham, J., concurring)). We find no such
error before us.
For the foregoing reasons, the judgment and sentence of the Jefferson
Circuit Court is hereby affirmed.
All sitting. All concur.·
COUNSEL FOR APPELLANT:
Daniel T. Goyette Joshua Hartman Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Jeffrey Allan Cross Assistant Attorney General