RENDERED: AUGUST 16, 2018 TO BE PUBLISHED
2017-SC-000261-MR
APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN HOWARD, JUDGE NO. 16-CR-00115
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A circuit court jury convicted Marc Daniel McCoy of complicity to the
kidnapping and the first-degree assault of Dealynn O’Connor and complicity to
theft by unlawful taking, over $500. Following the July’s recommendation, the
trial court entered judgment of conviction and sentenced McCoy to a total of 20
years’ imprisonment. McCoy now appeals from the judgment as a matter of
right, 1 raising two issues for review. Finding no reversible error, we affirm the
judgment.
Ky. Const. § 110(2)(b). 1. BACKGROUND.
Several people, including McCoy and O’Connor, came and went over the
span of two days to and from a trailer in Hardin County, Kentucky. The events
that came about during that get-together ended in criminal charges and
separate grand jury indictments against five people, including McCoy, who was
charged with complicity to the kidnapping and the first-degree assault of
O’Connor and complicity to theft by unlawful taking, over $500. Three of the
five defendants pleaded guilty before trial and testified against McCoy and a co
defendant, Trevor Brown Jr.,2 in a joint jury trial in which both McCoy and
Brown were convicted.
A concise summary of the facts giving rise to the charges against McCoy
is nearly impossible to relate because of the many actors involved and the
variations in stories. Testimony at trial revealed that an argument arose at the
Hardin County trailer between O’Connor and one or more of her assailants.
That argument escalated into a physical altercation, during which one of the
assailants took money from O’Connor’s purse. During the altercation, an
assailant asked for help, in response to which McCoy grabbed O’Connor by the
shirt and yanked her onto a kitchen counter a couple of times, slamming her
back against the kitchen counter and knocking the wind out of her. McCoy
then asked O’Connor, “where’s the drugs and the money,” and then kicked her
2 By separate opinion rendered today, we affirm the judgment of conviction and sentence of McCoy’s co-defendant. Brown v. Commonwealth, 2018-SC-000117-MR (Ky. 2018). hard in the head.3 McCoy and another assailant then threw O’Connor into the
bathroom at the trailer.
One of the assailants then telephoned Brown, described what had
happened to O’Connor, and asked him for help. Brown responded by coming to
the trailer, where the assailant introduced McCoy and Brown to each other.
The assailant then testified that she told McCoy and Brown to “just take
[O’Connor] somewhere, drop her off... with ... her car.” At this point, McCoy
and Brown removed O’Connor—who was bound and gagged, wrapped in a
bedsheet, and hooded with a pillowcase over her head—and put her into her
automobile.
Testimony also revealed that, at this point. Brown had in his possession
a paper towel containing jewelry stolen from O’Connor. Brown gave it to
McCoy. McCoy (the driver). Brown, and O’Connor drove to a bridge spanning
the Ohio River in adjoing Meade County, Kentucky. Upon arriving at the
bridge. Brown exited the vehicle with O’Conner and stabbed her three times.
Shortly thereafter, an officer, responding to a 911 call by a passerby who
found the victim, encountered McCoy walking along a road. The officer
detained McCoy and patted him down, finding the stolen jewelry. McCoy gave
the officer false information about his identity, the origin and his receipt of the
jewelry, and his whereabouts during the events in question.
3 There is testimonial inconsistency as to whether McCoy truly kicked O’Connor in the head. McCoy was then interviewed by Hardin County detectives. He initially
lied to the detectives about his whereabouts during the events of this case.
Eventually, McCoy recanted and admitted his involvement. He admitted that
Brown had given him the paper towel containing O’Conner's jewelry but denied
knowing that jewelry was in the towel. McCoy also admitted to having driven to
a “rural road called Pleasant Grove Road,” left O’Connor’s car “on some vacant
property ... behind a brush pile” where he threw the car keys, which were not
recovered, into some weeds.
II. ANALYSIS.
A. The trial court did not abuse its discretion when it denied McCoy’s motion for a continuance.
McCoy first argues that the trial court erred when it denied his requested
continuances of the jury trial. The parties dispute the preservation of this
issue, but the Commonwealth’s argument on that point is meritless. There is
no question that McCoy moved for a continuance both six days before trial and
the morning of trial, making at some point the same two arguments he now
makes on appeal. So this issue is preserved for our review.
Kentucky Rules of Criminal Procedure (“RCr”) 9.04 states, “The court,
upon motion and sufficient cause shown by either party, may grant a
postponement of the hearing or trial.” The trial court’s decision as to whether
to grant or deny a continuance is reviewed for an abuse of discretion.“The test
4 Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled by Lawson V. Commonwealth, 53 S.W.3d 534 (Ky. 2001) on a different issue). for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
“Whether a continuance is appropriate in a particular case depends upon
the unique facts and circumstances of that case.”® “Factors the trial court is to
consider in exercising its discretion are: length of delay; previous continuances;
inconvenience to litigants, witnesses, counsel and the court; whether the delay
is purposeful or is caused by the accused; availability of other competent
counsel; complexity of the case; and whether denying the continuance will lead
to identifiable prejudice.
McCoy argues that the trial court should have granted his motions for a
continuance for two reasons. First, shortly before trial, three of the five co
defendants decided to plead guilty in exchange for their testimony against
McCoy. McCoy argues that this late development forced his counsel to change
defenses to prepare for the co-defendants’ testimony. Second, the
Commonwealth disclosed relevant fingerprint evidence implicating McCoy six
days before trial. McCoy argues that he did not have enough time to have an
expert review the fingerprint evidence. But, both of McCoy’s reasons for a
continuance fail.
5 Goodyear Tire and Rubber Co. u. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). 6 Snodgrass, 814 S.W.2d at 581 (citing Ungaru. Sarafite, 376 U.S. 575, 589 (1964)). 7 Snodgrass, 814 S.W.2d at 581 (citing Wilson u. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985)). Responding to McCoy’s motion for a continuance based on the eve-of-
trial entry of the co-defendants’ guilty pleas, the trial court acknowledged that
the guilty pleas and statements implicating McCoy were made near trial. But
the trial court attempted to ascertain how McCoy would be prejudiced by the
guilty pleas and co-defendants’ statements. McCoy’s counsel then stated,
“Judge, based on my review of the statements and the evidence, in all candor, I
don’t think there’s a lot of variances as far as those details, but nevertheless,
given the situation, I would renew my motion.” McCoy’s counsel also
acknowledged that, to his knowledge, there was no substantial change in the
theory of the Commonwealth’s case based on the statements given by the
pleading co-defendants. Lastly, we note that the trial court offered McCoy the
opportunity to submit a written motion, with support, for a continuance, which
McCoy did not do.
We find nothing unreasonable, arbitrary, unfair, or unsupported by
sound legal principles in the trial court’s ruling. As McCoy’s counsel indicated,
the statements from the pleading co-defendants did not result in any new or
surprising information for the defense. At no point has McCoy articulated how
he was prejudiced by the statements of the pleading co-defendants—he simply
states that this late development, in and of itself, prejudiced him. But, we agree
with the trial court’s sentiment that it is the responsibility of defense counsel to
prepare for such a change in events. We additionally question any prejudice
McCoy experienced because of this development when his counsel chose not to submit a written motion further explaining his position despite the trial court’s
invitation.
McCoy additionally based his request for a continuance on the
purportedly late discovery received, i.e. fingerprint evidence implicating his
involvement in this case. McCoy argued that he received the fingerprint
evidence just six days before trial and did not have time to have an expert
review it to challenge the Commonwealth’s use of it. But, as both the
Commonwealth and trial court noted, the Commonwealth’s fingerprint-
evidence expert was disclosed several months before the March 20 trial date.
The trial court noted that this discourse should have alerted McCoy to the
Commonwealth’s use of the fingerprint evidence and should have prompted an
earlier request from McCoy for this information than the one he made the
month before trial. Nonetheless, the trial court authorized funds for McCoy to
hire a fingerprint expert to review the fingerprint evidence. The trial court
promised to adjust the trial schedule to afford McCoy the opportunity to
present any resulting exculpatory evidence.
Again, we fail to see how the trial court acted unreasonably, arbitrarily,
unfairly, or in a way unsupported by sound legal principles. As the trial court
noted, McCoy knew for some time that likely inculpatory fingerprint evidence
existed and did not act on that evidence until the month before trial. Although
McCoy did not receive the evidence until six days before trial, the trial court
was willing to make accommodations to ensure that any exculpatory proof
McCoy wanted to put on was presented at trial. Lastly, McCoy has not identified what purportedly exculpatory proof he could not offer at trial because
of the events that transpired, further supporting the trial court’s
characterization of this argument as “pure speculation.”
As such, the trial court did not abuse its discretion when denying
McCoy’s motions for continuances based on these rationales.
B. The trial court did not err when it denied McCoy’s motions for directed verdict on his charges.
McCoy next argues that the trial court should have granted McCoy’s
motions for directed verdict on his Complicity to (1) Kidnapping, (2) First-
Degree Assault, and (3) Theft by Unlawful Taking charges. Preservation of this
issue is disputed.
McCoy appears to make two arguments. His first argument is a general
argument that, based on the evidence adduced at trial, it was clearly
unreasonable for the jury to find guilt. His second argument is that O’Connor
suffered no “serious physical injury” in this case, negating the convictions
predicated on the satisfaction of this element.
If we find McCoy’s arguments to be preserved, “[o]n appellate review, the
test of a directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilty, only then the defendant is entitled to a
directed verdict of acquittal.”® If we find McCoy’s arguments to be unpreserved,
we shall review for palpable error.^ Palpable error requires a showing that the
8 Commoniuealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonivealth v. SaiuhUl, 660 S.W.2d 3 (Ky. 1983)). 9 RCr 10.26.
8 alleged error affected the “substantial rights” of a defendant, where relief may
be granted “upon a determination that manifest injustice has resulted from the
error.” 10 To find that “manifest injustice has resulted from the error,” this
Court must conclude that the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be “shocking or jurisprudentially
intolerable.”! 1
We shall address each conviction in turn. Because McCoy was convicted
of Complicity to multiple offenses, we note the genered definition of Complicity:
“A person is guilty of an offense committed by another person when, with the
intention of promoting or facilitating the commission of the offense, he: (a)
solicits, commands, or engages in a conspiracy with such other person to
commit the offense; or (b) aids, counsel, or attempts to aid such person in
planning or committing the offense.”12 We also note in our review of this issue:
“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.”13
10 Id. Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). 12 KRS 502.020(1). 13 Anastasi u. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988) (citing Rayburn v. Commonwealth, 476 S.W.2d 187 (Ky. 1972)). 1. Complicity to Kidnapping
At trial, McCoy moved for a directed verdict on his Complicity to
Kidnapping charge. The Commonwealth does not dispute the preservation of
the entirety of this issue.
“A person is guilty of kidnapping when he unlawfully restrains another
person and when his intent is: ... (b) to accomplish or to advance the
commission of a felony; or (c) to inflict bodily injury or to terrorize the victim or
another ... .”1^ “Kidnapping is a Class A felony when the victim is released alive
but the victim has suffered serious physical injury during the kidnapping, or as
a result of not being released in a safe place, or as a result of being released in
any circumstances which are intended, known or should have been known to
cause or lead to serious physical injury.”!^
McCoy’s argument, that the jury’s finding of guilt on McCoy’s complicity
to kidnapping charge was “clearly unreasonable,” is meritless. McCoy assisted
the other assailants in restraining O’Connor, throwing her against a kitchen
counter twice and possibly kicking her in the head, and stowing her in a
bathroom. McCoy and Brown were then directed by one of the assailants to
“just take her somewhere, drop her off ... with ... her car.” McCoy and Brown
proceeded to do so and took the victim—who was bound and gagged, wrapped
in a bedsheet, and hooded with a pillowcase over her head—away, traveling to
14 KRS 509.040(1). 15 KRS 509.040(2).
10 a bridge in a neighboring county. Finally, we note the exchange at trial between
the Commonwealth and McCoy on the cross-examination of McCoy:
Commonwealth: You knew she had been kidnapped or was being abducted? You’re not stupid, whether you were afraid or not, she was being kidnapped right?
McCoy: (silence)
Commonwealth: Held against her will.
McCoy: I guess you could say that, yes.
On these facts, we find it completely meritless to argue that the jury was
“clearly unreasonable” in finding McCoy guilty of Complicity to Kidnapping.
McCoy also argues that O’Connor never suffered a “serious physical
injury,” one of the elements that, if found satisfied, enhances kidnapping to a
Class A felony. KRS 500.080(15) defines serious physical injury to mean
“physical injury which creates a substantial risk of death, or which causes
serious and prolonged disfigurement, prolonged impairment of health, or
prolonged loss or impairment of the function of any bodily organ.”
We note at the outset of our analysis that O’Connor died in ein unrelated
incident before McCoy’s trial, so she could not provide testimony about her
injuries. In fact, the only evidence at trial as to O’Connor’s injuries amounted
to the knowledge that she was stabbed—pictures showing the injury—and
medical testimony provided by an expert witness testifying solely based on
medical records.
It is difficult to say that O’Connor’s injuries here qualify under the
serious and prolonged disfigurement, prolonged impairment of health, or
11 prolonged loss or impairment of the function of any bodily organ prongs. In
fact, the Commonwealth does not attempt to argue satisfaction of these prongs
of the serious physical injury test. This dispute then comes down to whether it
was clearly unreasonable for a jury to believe thqt, based on the evidence
adduced at trial, O’Connor suffered a “physical injury which creates a
substantial risk of death.”
The evidence at trial was that Brown stabbed O’Connor three times.
Because of the stabbing, O’Connor suffered a punctured lung, creating a hole
in the lung and causing a pneumothorax, also known as a collapsed lung.
Because of this injury, O’Connor received treatment at a Level One trauma
hospital. She was hospitalized for three days, had a tube inserted into her
torso, and remained hospitalized until she went a full day without her lung
collapsing upon removal of the chest tube. Medical testimony at trial revealed
that a pneumothorax, if untreated, can lead to respiratory arrest. The testifying
doctor also stated that any pneumothorax can become a “tension
pneumothorax,” which occurs when air becomes trapped in the chest wall and
pushes the heart to the opposite side of the body. The doctor testified that this
situation is “an absolute surgical emergency. People will die.” The doctor
testified that in O’Connor’s case, the pneumothorax was fortunately detected
quickly.
We cannot say that the trial court erred in denying McCoy’s motion for a
directed verdict because it was not clearly unreasonable for a jury to find the
stab wound causing a pneumothorax to be a serious physical injury. As stated.
12 serious physical injury can mean a “physical injury which creates a substantial
risk of death.Medical testimony at trial revealed that O’Connor was
transferred to a level one trauma hospital and that her injury could have led to
respiratory arrest and a tension pneumothorax, both of which can cause death.
O’Connor was hospitalized for three days and monitored for one day without
the chest tube before she could be released. From the evidence presented at
trial, we cannot say that it was “clearly unreasonable” for a jury to find that, in
and of itself, a pneumothorax, described by the evidence as potentially fatal,
constituted a physical injury creating a substantial risk of death.
Our holding here is supported by the holding of an unpublished Court of
Appeals case that our research shows is the only other time a Kentucky court
addressed the issue of whether a pneumothorax constitutes a serious physical
injury under the “physical injury creating a substantial risk of death” prong.
Under similar facts and witness testimony, the Court of Appeals in Hotuard
found that a pneumothorax, in and of itself, does constitute a serious physical
injury, because it constitutes a “physical injury creating a substantial risk of
death.”1® And other jurisdictions with statutory definitions of serious physical
16 KRS 500.080(15). 17 Howard v. Commonwealth, No. 2007-CA-001907-MR, 2008 WL 4822290 (Ky. App. Nov. 7, 2008). 18 Id. at *3.
13 injury identical to Kentucky’s that have taken up this issue have also found the
same?19
For the reasons stated above, the trial court did not err when denying
McCoy’s motion for a directed verdict on the Complicity to Kidnapping charge.
2. Complicity to First-Degree Assault
The jury also found McCoy guilty of Complicity to First-Degree Assault.
The Commonwealth disputes the preservation of this issue, arguing that
McCoy only argued that there was no common plan or scheme to attempt to
murder O’Connor, not that the assault did not rise to the level of serious
physical injuiy. But McCoy points out that he was charged with Complicity to
Attempted Murder, not the lesser-included offense of First-Degree Assault, of
which the jury found him guilty, so there was no reason to dispute the serious-
physical-injury element of first-degree assault. And McCoy notes that one of his
main arguments on his motions for directed verdict in general was that
O’Connor did not suffer a serious physical injuiy. We think that the entirety of
this argument should be reviewed on appeal as a preserved error in fairness to
McCoy.
“A person is guilty of assault in the first degree when: (a) He intentionally
causes serious physical injury to another person by means of a deadly weapon
or a dangerous instrument; or (b) Under circumstances manifesting extreme
19 See e.g. People v. Thompson, 224 A.D.2d 646, 647 (N.Y. App. 1996); State v. Barnes, 714 S.W.2d 811, 813 (Mo. App. 1986); Montgomery v. State, No. 14-16-00365-CR, 2017 WL 2484375, at *3 (Tex. App. June 8, 2017)). Smith u. State, No. CACR 12-396, 2012 WL 5451807, at *3 (Ark. App. Nov. 7, 2012).
14 indifference to the value of human life he wantonly engages in conduct which
creates a grave risk of death to another and thereby causes serious physical
injury to another person.”2°
As noted, McCoy assisted the other assailants in restraining O’Connor,
throwing her against a kitchen counter twice and possibly kicking her in the
head, and stowing her in a bathroom. McCoy and Brown were then directed by
one of the assailants to “just take her somewhere, drop her off... with ... her
car.” McCoy and Brown proceeded to do so and took the victim-who was bound
and gagged, wrapped in a bedsheet, and hooded with a pillowcase over her
head—away. McCoy and Brown then drove to and stopped at a bridge in a
neighboring county, where Brown and O’Connor exited the vehicle. McCoy
testified that he knew “there was a serious ordeal going on,” that he was
scared, that he thought stopping on the bridge was “very odd,” and that he was
“worried about [O’Connor].” Brown then stabbed O’Connor, puncturing her
lung. McCoy and Brown then fled the scene. McCoy ditched O’Connor’s car
behind some brush in an abandoned area, throwing away the keys in the
process.
On these facts, we find meritless the argument that it was “clearly
unreasonable” for the jury to find McCoy guilty of Complicity to First-Degree
Assault. Additionally, we have already determined that the pneumothorax
O’Connor suffered because of the stabbing can be properly characterized as a
20 KRS 508.010(1).
15 serious physical injuiy. So we conclude that the trial court did not err in
denying McCoy’s motion for directed verdict on his Complicity to First-Degree
Assault charge.
3. Complicity to Theft by Unlawful Taking of O’Connor’s Property
Lastly, McCoy argues that the trial court erred when it denied his motion
for a directed verdict on his Complicity to Theft by Unlawful Taking. At trial,
McCoy specifically moved for a directed verdict on the premise that “there’s
been no evidence that [McCoy] himself took [O’Connor’s] jewelry or the money
by force or threat of physical force.” The Commonwealth responded, “We know
that he was in possession of her jewelry, that he admitted being in possession
of it. I think it’s clear that he was in possession of her vehicle at one point.”
Based on the argument the trial court heard, we will treat this issue as
preserved.
Even so, as we have found McCoy’s other arguments to be, we find his
contention that the trial court erred when denying his motion for directed
verdict on the Complicity to Theft by Unlawful Taking charge completely
meritless. “[A] person is guilty of theft by unlawful taking or disposition when
he unlawfully: (a) Takes or exercises control over movable property of another
with intent to deprive him thereof ... .”21 “‘Deprive’ means: (a) To withhold
property of another permanently ... ; or (b) To dispose of the property so as to
make it unlikely that the owner will recover it.”22
21 KRS 514.030(1). 22 KRS 514.010(1).
16 The jury instructions afforded the jury three different pieces of property
the jury could have found McCoy to have been complicit in stealing, i.e. “money
or jewelry or car.” Officers found O’Connor’s stolen jewelry in the possession of
McCoy, the stolen jewelry that was testified to as being given to McCoy by
Brown. Testimony revealed that McCoy asked O’Connor where her drugs and
money were. McCoy was the driver of O’Connor’s car during their kidnapping of
O’Connor. McCoy admitted at trial that he pulled the car off on the side of the
road, parked it behind some brush in an abandoned area, and left, but not
before he threw away the keys.
Once again, the circumstances of this case support the trial court’s
denial of McCoy’s motion for directed verdict on his Complicity to Theft by
Unlawful Taking charge. Simply put, the trial court did not err in denying
McCoy’s motion for a directed verdict in his Complicity to Theft by Unlawful
Taking charge, nor in its denial of McCoy’s directed verdict motions on his
other charges, as on none of these charges was it “clearly unreasonable” for the
jury to have found guilt.
III. CONCLUSION
Finding no reversible error, we affirm the entirety of the judgment.
All sitting. All concur.
17 COUNSEL FOR APPELLANT:
Roy Alyette Durham II Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Leilani K.M. Martiin Assistant Attorney General