RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000223-MR
JENNIFER S. SMITH APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE WILLIAM A. KITCHEN, III, JUDGE ACTION NO. 17-CR-00008
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Jennifer Smith appeals the McCracken Circuit Court’s January
17, 2019 judgment and sentence of imprisonment. She concedes that her
arguments are not preserved for appeal but requests this Court to review her
arguments for palpable error. She contends the trial court erred by (1) failing to grant her a directed verdict and (2) convicting her of two counts of first-degree
criminal mischief, violating double jeopardy. Finding no error, we affirm.
BACKGROUND
On August 21, 2016, Nekita Tyler and Ronnie Bone met at Rocker’s
Bar and Grill in McCracken County. While there, Tyler and Bone had quite a bit
to drink. That same day, Smith arrived at Rocker’s for a birthday party and had
three shots of vodka. Tyler and Bone eventually asked Smith for a ride across the
street to get cigarettes and vodka; Smith agreed. After buying the cigarettes and
alcohol, Smith drove all of them back to Rocker’s, traveling westbound.
In another car, John Farris, his wife (Bridgette Farris), and their eight-
month-old daughter (Stella Farris) were traveling southbound on U.S. Highway 45
to get back home. Smith’s and Farris’s cars collided in the median. Thankfully,
no life-threatening injuries resulted from the crash. The McCracken County
Sheriff’s office was dispatched to the scene.
Upon arriving, police officers spoke to witnesses and occupants of
both vehicles. Those injured were transported to the hospital. Initially, Sergeant
David Shepard believed Bone was the driver, but after speaking to witnesses, and
observing the scene, police concluded Smith was operating the vehicle. Smith was
a woman of short stature and police noticed the seat was pulled up almost against
the steering wheel – Bone could not have fit in the seat.
-2- At the hospital, Smith admitted to police she had three shots of
Fireball Vodka before driving to the shop. She also admitted she took Valium,
Lortab, and “a nibble” of Suboxone (a prescribed medication) earlier in the day.
Police confronted Smith with the surveillance video from the shop showing her
driving when they left. Police asked if she would “do it again,” and Smith stated
she would not have driven and she was very sorry.
An hour and fifty-three minutes after the reported collision, hospital
employees drew Smith’s blood. Her blood-alcohol level was .012. Based on the
time the blood was withdrawn, Dr. Greg Davis extrapolated her blood/alcohol level
at the time of the collision was between .039 to .049. Dr. Davis also concluded the
Valium and Lortab in her system were within therapeutic levels but would have
diminished her driving ability. The damage from the crash resulted in Farris’s
vehicle being totaled, a loss of about $20,000.00, and 37 ½ feet of guardrail
damaged, costing the state $1,410.62 to replace.
On September 11, 2018, Smith was tried before a jury. During the
trial, Bone, Tyler, and a witness to the accident testified Smith was the driver.
Despite that testimony, Smith testified Bone drove her car away from Rocker’s,
but that was all she could remember from the accident. At the conclusion of the
evidence, the jury found her guilty of: (1) operating a motor vehicle while under
the influence of intoxicants; (2) wanton endangerment in the first degree (Bridgette
-3- Farris); (3) wanton endangerment in the first degree (John Farris); (4) wanton
endangerment in the first degree (Stella Farris); (5) criminal mischief in the first
degree (Farris’s car); (6) criminal mischief in the first degree (guardrail); (7)
failure to notify Transportation Cabinet of address change;1 (8) assault in the
second degree (Nekita Tyler); and (9) assault in the fourth degree (Bridgette
Farris). The trial court sentenced her to concurrent terms of imprisonment totaling
one year and fines totaling $800.00. This appeal followed.
STANDARD OF REVIEW
Smith concedes that all of her arguments are unpreserved for appeal.
However, this Court can review unpreserved issues for palpable error. “A palpable
error which affects the substantial rights of a party may be considered . . . on
appeal, even though insufficiently raised or preserved for review, and appropriate
relief may be granted upon a determination that manifest injustice has resulted
from the error.” RCr2 10.26. “[U]nder that standard, reversal is warranted if a
manifest injustice has resulted from the error, which requires a showing of the
probability of a different result or error so fundamental as to threaten a defendant’s
1 The trial court eventually dismissed this charge in its Amended Final Judgment/Sentence of Imprisonment dated January 17, 2019. 2 Kentucky Rules of Criminal Procedure.
-4- entitlement to due process of law.” Jones v. Commonwealth, 382 S.W.3d 22, 29
(Ky. 2011) (internal quotation marks and citation omitted).
ANALYSIS
Smith first argues the trial court erred by failing to grant a directed
verdict on the charge of criminal mischief pertaining to the guardrail because the
Commonwealth did not prove she was the cause of the damage. The statutory
elements of first-degree criminal mischief are that the person, (1) having no right
to do so or any reasonable ground to believe that he has such right, (2)
intentionally or wantonly (3) defaces, destroys or damages any property, (4)
causing pecuniary loss of $1,000.00 or more. KRS3 512.020. All that is in dispute
is whether Smith caused the damage to the guardrail. Because the issue is
unpreserved, Smith is entitled to nothing more than review for palpable error. To
succeed in her claim, she must show that a manifest injustice resulted from the
court failing to issue a directed verdict. We find no palpable error.
Her counsel had ample opportunity to attack this question. It seems
that her counsel chose to use the strategy that she was not the driver of the car, in
lieu of showing the flaws in the Commonwealth’s causation argument.
Additionally, a reasonable juror could conclude that Smith caused the damage to
the guardrail, because jurors may draw reasonable inferences from the evidence.
3 Kentucky Revised Statutes.
-5- Barker v. Commonwealth, 304 Ky. 13, 199 S.W.2d 713 (1947). Smith fails to
argue, and we fail to see, how she suffered a manifest injustice.
Smith also argues the issue of double jeopardy regarding her two
counts of first-degree criminal mischief. Again, we disagree.
KRS 505.020 addresses rules regarding the question of multiple
offenses arising from a single course of conduct. The general rule is simple:
“[w]hen a single course of conduct of a defendant may establish the commission of
more than one (1) offense, he may be prosecuted for each such offense.” KRS
505.020(1). As with many rules, there are exceptions.
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RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000223-MR
JENNIFER S. SMITH APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE WILLIAM A. KITCHEN, III, JUDGE ACTION NO. 17-CR-00008
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Jennifer Smith appeals the McCracken Circuit Court’s January
17, 2019 judgment and sentence of imprisonment. She concedes that her
arguments are not preserved for appeal but requests this Court to review her
arguments for palpable error. She contends the trial court erred by (1) failing to grant her a directed verdict and (2) convicting her of two counts of first-degree
criminal mischief, violating double jeopardy. Finding no error, we affirm.
BACKGROUND
On August 21, 2016, Nekita Tyler and Ronnie Bone met at Rocker’s
Bar and Grill in McCracken County. While there, Tyler and Bone had quite a bit
to drink. That same day, Smith arrived at Rocker’s for a birthday party and had
three shots of vodka. Tyler and Bone eventually asked Smith for a ride across the
street to get cigarettes and vodka; Smith agreed. After buying the cigarettes and
alcohol, Smith drove all of them back to Rocker’s, traveling westbound.
In another car, John Farris, his wife (Bridgette Farris), and their eight-
month-old daughter (Stella Farris) were traveling southbound on U.S. Highway 45
to get back home. Smith’s and Farris’s cars collided in the median. Thankfully,
no life-threatening injuries resulted from the crash. The McCracken County
Sheriff’s office was dispatched to the scene.
Upon arriving, police officers spoke to witnesses and occupants of
both vehicles. Those injured were transported to the hospital. Initially, Sergeant
David Shepard believed Bone was the driver, but after speaking to witnesses, and
observing the scene, police concluded Smith was operating the vehicle. Smith was
a woman of short stature and police noticed the seat was pulled up almost against
the steering wheel – Bone could not have fit in the seat.
-2- At the hospital, Smith admitted to police she had three shots of
Fireball Vodka before driving to the shop. She also admitted she took Valium,
Lortab, and “a nibble” of Suboxone (a prescribed medication) earlier in the day.
Police confronted Smith with the surveillance video from the shop showing her
driving when they left. Police asked if she would “do it again,” and Smith stated
she would not have driven and she was very sorry.
An hour and fifty-three minutes after the reported collision, hospital
employees drew Smith’s blood. Her blood-alcohol level was .012. Based on the
time the blood was withdrawn, Dr. Greg Davis extrapolated her blood/alcohol level
at the time of the collision was between .039 to .049. Dr. Davis also concluded the
Valium and Lortab in her system were within therapeutic levels but would have
diminished her driving ability. The damage from the crash resulted in Farris’s
vehicle being totaled, a loss of about $20,000.00, and 37 ½ feet of guardrail
damaged, costing the state $1,410.62 to replace.
On September 11, 2018, Smith was tried before a jury. During the
trial, Bone, Tyler, and a witness to the accident testified Smith was the driver.
Despite that testimony, Smith testified Bone drove her car away from Rocker’s,
but that was all she could remember from the accident. At the conclusion of the
evidence, the jury found her guilty of: (1) operating a motor vehicle while under
the influence of intoxicants; (2) wanton endangerment in the first degree (Bridgette
-3- Farris); (3) wanton endangerment in the first degree (John Farris); (4) wanton
endangerment in the first degree (Stella Farris); (5) criminal mischief in the first
degree (Farris’s car); (6) criminal mischief in the first degree (guardrail); (7)
failure to notify Transportation Cabinet of address change;1 (8) assault in the
second degree (Nekita Tyler); and (9) assault in the fourth degree (Bridgette
Farris). The trial court sentenced her to concurrent terms of imprisonment totaling
one year and fines totaling $800.00. This appeal followed.
STANDARD OF REVIEW
Smith concedes that all of her arguments are unpreserved for appeal.
However, this Court can review unpreserved issues for palpable error. “A palpable
error which affects the substantial rights of a party may be considered . . . on
appeal, even though insufficiently raised or preserved for review, and appropriate
relief may be granted upon a determination that manifest injustice has resulted
from the error.” RCr2 10.26. “[U]nder that standard, reversal is warranted if a
manifest injustice has resulted from the error, which requires a showing of the
probability of a different result or error so fundamental as to threaten a defendant’s
1 The trial court eventually dismissed this charge in its Amended Final Judgment/Sentence of Imprisonment dated January 17, 2019. 2 Kentucky Rules of Criminal Procedure.
-4- entitlement to due process of law.” Jones v. Commonwealth, 382 S.W.3d 22, 29
(Ky. 2011) (internal quotation marks and citation omitted).
ANALYSIS
Smith first argues the trial court erred by failing to grant a directed
verdict on the charge of criminal mischief pertaining to the guardrail because the
Commonwealth did not prove she was the cause of the damage. The statutory
elements of first-degree criminal mischief are that the person, (1) having no right
to do so or any reasonable ground to believe that he has such right, (2)
intentionally or wantonly (3) defaces, destroys or damages any property, (4)
causing pecuniary loss of $1,000.00 or more. KRS3 512.020. All that is in dispute
is whether Smith caused the damage to the guardrail. Because the issue is
unpreserved, Smith is entitled to nothing more than review for palpable error. To
succeed in her claim, she must show that a manifest injustice resulted from the
court failing to issue a directed verdict. We find no palpable error.
Her counsel had ample opportunity to attack this question. It seems
that her counsel chose to use the strategy that she was not the driver of the car, in
lieu of showing the flaws in the Commonwealth’s causation argument.
Additionally, a reasonable juror could conclude that Smith caused the damage to
the guardrail, because jurors may draw reasonable inferences from the evidence.
3 Kentucky Revised Statutes.
-5- Barker v. Commonwealth, 304 Ky. 13, 199 S.W.2d 713 (1947). Smith fails to
argue, and we fail to see, how she suffered a manifest injustice.
Smith also argues the issue of double jeopardy regarding her two
counts of first-degree criminal mischief. Again, we disagree.
KRS 505.020 addresses rules regarding the question of multiple
offenses arising from a single course of conduct. The general rule is simple:
“[w]hen a single course of conduct of a defendant may establish the commission of
more than one (1) offense, he may be prosecuted for each such offense.” KRS
505.020(1). As with many rules, there are exceptions.
The legislature carved out exceptions for “included” offenses, KRS
505.020(1)(a); for offenses requiring inconsistent findings of fact, KRS
505.020(1)(b); and for offenses designed to prohibit a continuing course of conduct
where only an uninterrupted course of that conduct is alleged, KRS 505.020(1)(c).
The Kentucky Supreme Court held that the statute incorporates the
Blockburger4 test as one of the ways to determine whether one offense is included
in another. Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996)
(referencing KRS 505.020(2)(a)). The statute also deems offenses the “same” for
double jeopardy purposes if one is an attempt to commit the other, KRS
505.020(2)(b); if one differs from the other only in requiring for its commission a
4 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
-6- lesser kind of culpability, KRS 505.020(2)(c); or if one differs from the other only
in requiring for its commission a less serious injury or risk of injury to the same
person, property, or public interest, KRS 505.020(2)(d). See McNeil v.
Commonwealth, 468 S.W.3d 858, 867 (Ky. 2015).
None of these exceptions applies when the same course of conduct
victimizes two different individuals. In Smith’s case, then, there is nothing to
apply but the general rule: “a single course of conduct of a defendant may
establish the commission of more than one (1) offense, [and] he may be prosecuted
for each such offense.” KRS 505.020(1). Circumstances such as those in Smith’s
case are not uncommon and routinely result in separate counts of assault for each
victim of the collision. See, e.g., Farmer v. Commonwealth, 169 S.W.3d 50, 52
(Ky. App. 2005) (“As a result of the motor vehicle collision, Farmer was indicted .
. . on two counts of first-degree assault relative to the injuries sustained by Angela
and Daniel Baker.”).
We find no palpable error here.
CONCLUSION
Based on the foregoing reasons, we affirm the McCracken Circuit
Court’s January 17, 2019 judgment and sentence of imprisonment.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Roy Alyette Durham, II Andy Beshear Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-8-