Jesse Ashcraft v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: May 23, 2024
• Docket: 2022 CA 001390
• Status: Unknown

Opinion

RENDERED: MAY 24, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-1390-MR

JESSE DANIEL ASHCRAFT APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 21-CR-00120

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, ECKERLE, AND MCNEILL, JUDGES.

ECKERLE, JUDGE: Appellant, Jesse Daniel Ashcraft (“Ashcraft”), punched

Michael Landrum (“Landrum”) multiple times during a barroom fight. Landrum’s

eye (which was already not healthy, though the Trial Court did not permit this

information to be revealed to the jury) ruptured. Six months later, Landrum

suffered the permanent removal of the eye. Appellee, the Commonwealth of Kentucky (“Commonwealth”), charged Ashcraft with Assault in the First Degree.

At the conclusion of trial, the jury convicted him of the lesser-included offense of

Assault in the Second Degree under an imperfect self-defense theory. The Trial

Court followed the jury’s recommendation and sentenced him to the maximum

sentence of imprisonment for ten years. Ashcraft appeals as a matter of right.

BACKGROUND

The fight occurred on August 16, 2020, at the Sit N’ Bull Café in

Campbell County, Kentucky. Surveillance video footage showed nearly the entire

incident, although the footage contains no audio sound. It revealed that Ashcraft

was sitting at the bar with his date, Tabitha Ferrell (“Ferrell”), while Landrum, Tim

Sandfoss (“Sandfoss”), and others played pool at a nearby table. At some point,

Ferrell began looking over at Sandfoss and sticking up her middle finger at him.

Landrum noticed this activity and eventually approached Ashcraft and Ferrell.

Words were exchanged, with all parties having differing recollections about the

exact exchanges. It appears that Ferrell may not have paid Sandfoss for past home

improvement work.

At some point Ashcraft got up and stood between Landrum and

Sandfoss. A kerfuffle ensued, and Landrum pointed for Ashcraft to exit. Landrum

also dropped his pool stick.

-2- Ashcraft then turned around and hit Landrum approximately a half-

dozen times. Landrum claims his vision in his right eye immediately went black.

Others jumped into the melee, with Ashcraft also fighting Sandfoss and throwing

pool balls.

Police officers arrived shortly after the brawl terminated. They

obtained numerous statements from witnesses and the parties. Ashcraft initially

told the officers that he was at the bar when multiple individuals jumped him, and

they struck him first. The surveillance footage did not support that statement.

At trial, Ashcraft testified that he felt unwelcome from the moment

that he walked into the bar with Ferrell. He claimed that Landrum approached him

several times and made statements about Ferrell’s alleged need to pay her debts.

Ashcraft believed that these comments constituted a threat. After he moved to

stand between Landrum and Sandfoss, Ashcraft perceived that he was going to be

attacked due to the language used and Landrum’s action of pointing at the door.

Ashcraft claimed that he was surrounded, pinned in on all sides, and believed they

were going to fight him. He also cited fear for Ferrell’s safety. Accordingly, he

began fighting.

After the fight, medical professionals determined that Landrum’s right

eye sustained a global rupture. Landrum underwent surgery soon afterwards, and

months later, he suffered a total removal of the eye.

-3- A grand jury indicted Ashcraft on a charge of Assault in the First

Degree on the theory that his fists constituted dangerous instruments that caused a

serious, physical injury.1 At the following petit jury trial, Ashcraft sought to

introduce evidence that Landrum endured preexisting, medical issues with his right

eye that caused it to be highly susceptible to rupture. Ashcraft also sought to

introduce expert testimony regarding these issues and the ability of a healthy

eyeball to withstand multiple punches. The Trial Court excluded all of this

evidence, over the objection of Ashcraft, who introduced it by avowal.

At the conclusion of a four-day trial, a jury returned a guilty verdict of

Assault in the Second Degree based upon an imperfect self-defense theory and

recommended the maximum sentence of imprisonment for ten years. The Trial

Court issued a judgment and sentence in accordance with that verdict. Ashcraft

appeals as a matter of right.

ANALYSIS

Ashcraft raises four issues on appeal. We discuss them in the order

presented.

1 The initial indictment was for one count of Assault in the Second Degree for the actions against Landrum and one count of Assault in the Fourth Degree for the actions against Sandfoss. The Commonwealth later obtained a superseding indictment raising the degree of the felony assault charge. It dismissed the misdemeanor assault charge prior to voir dire.

-4- I. Did the Trial Court abuse its discretion by excluding evidence of

Landrum’s preexisting eye injury and treatment?

Ashcraft first claims that the Trial Court committed reversible error

when it allegedly abused its discretion and excluded certain evidence regarding

Landrum’s preexisting medical conditions. We agree.

Prior to trial, Ashcraft filed motions to introduce evidence and expert

opinion regarding Landrum’s prior medical issues related to his eye. Ashcraft

wanted to show that Landrum previously underwent a corneal transplant that was

fragile and could easily be re-opened, causing the eye to rupture. The

Commonwealth opposed Ashcraft’s motions and filed its own motion to exclude

any references to Landrum’s preexisting, eye issues. The Trial Court excluded the

evidence as irrelevant pursuant to KRE2 401. Ashcraft continually revisited the

exclusion throughout the trial and during an avowal presentation of Ashcraft’s

proposed expert. The Trial Court never altered its pretrial ruling.

Ashcraft argues on appeal that the evidence should have been

admitted because the evidence was relevant to: (1) the mens rea; (2) the element

of wantonness or recklessness under the imperfect self-defense instruction; (3) the

factual determination of whether Ashcraft’s hands constituted a dangerous

instrument; and (4) the penalty phase because the evidence explained allegedly

2 Kentucky Rules of Evidence.

-5- mitigating circumstances of the offense. We agree that the evidence was relevant

on the dangerous instrument element; thus, we reverse and remand for a new trial.

As the Trial Court should have allowed this evidence to be presented during the

guilt phase on this singular ground, we do not address Ashcraft’s mens rea,

wantonness/recklessness, and penalty phase arguments, although they likewise

appear to have merit.

KRE 401 provides that relevant evidence is “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” “All relevant evidence is admissible” except for certain

statutory, rule-based, and constitutional exclusions, and “[e]vidence which is not

relevant is not admissible.” KRE 402. “Relevancy is established by any showing

of probativeness, however slight.” Springer v. Commonwealth, 998 S.W.2d 439,

449 (Ky. 1999). As our Supreme Court has announced:

An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable.

-6- Turner v. Commonwealth, 914 S.W.2d 343, 346 (Ky. 1996) (quoting Robert G.

Lawson, The Kentucky Evidence Law Handbook § 2.05, at 53 (3d ed. 1993) (citing

Cleary, McCormick on Evidence, at 542-543 (3d ed. 1984)).

We review the Trial Court’s evidentiary ruling for abuse of discretion.

Webb v. Commonwealth, 387 S.W.3d 319, 324 (Ky. 2012) (citing Anderson v.

Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007)). “The test for an abuse of

discretion ‘is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.’” Anderson, 231 S.W.3d at 119 (quoting

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).

A Kentucky statute defines “dangerous instrument” as follows:

. . . any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.

KRS3 500.080(3). As our Court has previously held, whether parts of the human

body are “dangerous instruments depends on the facts of the case and the

capability of the body part to ‘cause death or serious physical injury.’” Johnson v.

Commonwealth, 926 S.W.2d 463, 465 (Ky. App. 1996) (quoting Cooper v.

Commonwealth, 569 S.W.2d 668 (Ky. 1978)). The apparent fragility of the victim

3 Kentucky Revised Statutes.

-7- is relevant to whether a human body part is a dangerous instrument. See, e.g.,

Johnson, 926 S.W.2d at 465 (holding that an adult striking a two-month-old “is

precisely the kind of assault the legislature believed justified increasing the degree

of such an offense”). However, “a strike with an untrained hand to an adult is

unlikely to cause death or serious injury, while the hand of one trained in martial

arts may be considered a dangerous instrument.” Id. Additionally, it is the

Commonwealth’s burden to establish “that serious physical injury actually

occurred as a direct result of the use of that part of the human body.”

Commonwealth v. Davidson, 277 S.W.3d 232, 234 (Ky. 2009).

Here, the evidence that the jury was allowed to hear demonstrated that

the punches were a direct cause of Landrum losing his eye; however, the excluded

evidence demonstrated that the punches were at most a contributing cause of the

eye loss and that they may not have been a direct cause at all. Cf. Adcock v.

Commonwealth, 702 S.W.2d 440, 444 (Ky. 1986) (citing Hubbard v.

Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947); Hopkins v. Commonwealth,

117 Ky. 941, 80 S.W. 156 (1904)) (“Even though a person suffers from serious

maladies from which he will die sooner or later, to the extent that the infliction of

an injury hastens death and causes it to occur sooner rather than later, the injury is

a direct cause of the death at the time it occurred.”). While the loss of an eye

undoubtedly constitutes a serious, physical injury, the manner and cause of that

-8- loss are not as clear here because a proper assessment of the alleged instrument of

causation, i.e., a layman’s hands, was never allowed to be made. Jones v.

Commonwealth, 737 S.W.2d 466, 468 (Ky. App. 1987).

Without a complete, honest assessment of Landrum’s preexisting

medical condition that painted a complete picture of the facts, the jury could not

make an informed or accurate decision about whether Ashcraft’s hands were

“readily capable” of causing a serious physical injury. KRS 500.080(3). Landrum

appeared to be a normal, healthy, middle-aged man of similar stature to Ashcraft;

thus, there was no apparent fragility of the victim. See Johnson, supra. And there

was no evidence that Ashcraft had any special training in hand-to-hand combat that

would elevate Ashcraft’s hands to dangerous-instrument status. Id. Thus, to make

a proper factual determination that Ashcraft’s fists were “readily capable” of

causing serious, physical injury such that they constituted dangerous instruments, a

jury should have been permitted to hear evidence that Landrum suffered from

preexisting medical issues relating to the serious, physical injury claimed.

Otherwise, and without such available evidence, the jury was

permitted to conclude that Ashcraft’s fists were readily capable of causing serious,

physical injury solely because they were used to punch a normal, healthy eye so

hard that the direct result was the rupture and removal of the eye. Thus, the Trial

Court permitted the jury to base its conclusion on “facts” that were manifestly

-9- untrue because the undisputed, actual facts that showed that the eye was neither

normal nor healthy, and these facts were hidden from the jury. Had the jury been

aware that the eye was already fragile, they might have found Ashcraft’s hands

were not dangerous instruments because they were not readily capable of causing

serious, physical injury. See generally Williams v. Commonwealth, No. 2015-SC-

000307-MR (Ky. Feb. 16, 2017) (“We do not hold, and we do not intend to

suggest, that in every assault resulting in a serious physical injury, the instrument

of attack, whether it be a hand, a foot, or some other object, is conclusively a

‘dangerous instrument,’ and thus a first degree assault.”). Notably, during the

avowal testimony, Ashcraft’s expert opined that a punch to a healthy eye would

not cause an eyeball to rupture.4

Because the evidence was relevant to a factual issue to be determined

by the jury on an essential element of the crime charged, the Trial Court should

have admitted it. Moreover, because the exclusion of this evidence prohibited

Ashcraft from showing that his hands did not qualify as dangerous instruments, the

Trial Court also denied Ashcraft the right to present a defense on a required

element. See, e.g., Beaty v. Commonwealth, 125 S.W.3d 196, 206-10 (Ky. 2003),

4 The Commonwealth alternatively requested a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), regarding Ashcraft’s expert. The Trial Court excluded the testimony on other grounds and did not rule on this issue. Neither of the parties has raised it on appeal; thus, we do not address it.

-10- overruled in part by Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016). Its

exclusion was thus an abuse of discretion. Accordingly, reversal and remand for a

new trial is required.

II. Did the Trial Court Err in its Jury Instructions?

Ashcraft next argues that the Trial Court erred by declining to instruct

the jury on stand-alone, second-degree (intentional and wanton theories) and

fourth-degree, assault instructions. The Trial Court did not give any of these

instructions because it held that the injury was a serious, physical injury, and there

was no indication the actions were anything other than intentional. As we are

reversing and remanding for a new trial where additional evidence may be

introduced on the dangerous instrument element, we will provide some guidance

on these issues.

A Trial Court has an obligation to instruct the jury on the whole law

of the case and on all offenses supported by the evidence. RCr5 9.54(1); Clark v.

Commonwealth, 223 S.W.3d 90, 93 (Ky. 2007) (citation omitted). Furthermore,

instructions on lesser included offenses are appropriate when the evidence permits

that “a reasonable juror could entertain a reasonable doubt as to the defendant’s

guilt of the greater offense, but believe beyond a reasonable doubt that the

5 Kentucky Rules of Criminal Procedure.

-11- defendant is guilty of the lesser offense.” Taylor v. Commonwealth, 995 S.W.2d

355, 362 (Ky. 1999) (citations omitted).

Second-degree assault occurs when a person: (1) intentionally causes

serious, physical injury to another person; (2) intentionally causes physical injury

to another person by means of a deadly weapon or a dangerous instrument; or (3)

wantonly causes serious, physical injury to another person by means of a deadly

weapon or a dangerous instrument.

Thus, the Trial Court may instruct the jury on theory (1) if the

evidence shows that Ashcraft acted intentionally, and his actions were the direct

cause of a serious, physical injury. The Trial Court may also instruct the jury on

theory (3) IF it also includes a determination for the jury to make as to whether

Ashcraft’s hands constituted dangerous instruments. However, assuming the

evidence produced at a future trial is similar to the instant trial, it cannot instruct on

second-degree assault theory (2) or on fourth-degree assault, because the injury

suffered was a serious, physical injury, and not merely a physical injury. KRS

508.030; Jones, 737 S.W.2d at 468.

Ashcraft argues repeatedly throughout his brief that he never acted

intentionally because he never intended on causing a serious, physical injury.

However, he ignores that he intended on engaging in the conduct that may have

been the direct result of serious, physical injury. “A person acts intentionally with

-12- 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(1). All evidence introduced, including Ashcraft’s own testimony, was

that he purposefully turned and punched Landrum in the face. “That behavior

certainly seems more compatible with the definition of ‘intentional,’ in that his

conscious objective was to engage in that conduct.” Adkins v. Commonwealth, 787

S.W.2d 272, 273 (Ky. App. 1990). Thus, it is for the jury to conclude whether his

actions were intentional.

III. Did the Trial Court Err in its Procedures for Refreshing

Recollection?

Ashcraft next argues that the Trial Court committed reversible error in

requiring Ashcraft to use certain procedures to refresh and/or impeach witnesses

with their prior-recorded statements. As we are reversing and remanding for a new

trial regarding improperly excluded evidence, we do not need to determine whether

reversible error occurred on this, separate ground. Our Supreme Court has recently

detailed the mechanisms for refreshing and/or impeaching witnesses with their

prior-recorded statements. Alderson v. Commonwealth, 670 S.W.3d 884, 901-02

(Ky. 2023). Such specifications should be followed as necessary on remand.

-13- IV. Did Ashcraft’s Trial Suffer from Cumulative Errors?

Finally, Ashcraft argues that he is entitled to a new trial due to

cumulative errors. As we are reversing and remanding for a new trial, this

argument is moot.

CONCLUSION

Ashcraft was erroneously precluded from presenting evidence of an

essential element of the charge of Assault in the First-Degree. Accordingly, we

REVERSE AND REMAND the judgment and sentence entered against Ashcraft

for a new trial to be held at which Ashcraft may present evidence of Landrum’s

preexisting medical issues with his eye and other such admissible evidence that is

relevant and probative of whether Ashcraft’s hands constitute dangerous

instruments.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Sarah D. Dailey Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky

-14-