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Kentucky (2019)


Jackson v. Commonwealth of Kentucky, 2011 Ky. Unpublished LEXIS 62

“‘Serious physical injury’ means 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.” KRS 500.080(13). Tana testified, with corroborating medical testimony, that Appellant had choked her, causing her to lose consciousness. Further expert testimony explained that when a victim is choked into unconsciousness, the brain fails to receive adequate oxygen to function properly, which can result in brain injury or death.

Jones v. Comm. 2012 WL 377666 (KY)

16 YO assaulted at carwash. D came from behind, wrapped his arm around her neck and choked her in a headlock.

V was unable to breathe, felt lightheaded, “almost seeing black” and possibly losing consciousness. She thought she was going to die and “it was the end”

D only stopped with witnesses intervened.

D charged with assault in the second degree and unlawful imprisonment in the first. Sentenced to 15 years.

D claimed V did not suffer serious physical injury.

SPI means PI which creates 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.

PI means substantial pain or any impairment of physical condition.

Court focused on whether or not strangulation created a substantial risk of death. 

D claimed more than the act of strangulation was necessary. There needs to injury after the assault.

D relied on Floyd v. Comm 2009 WL 736002, unpub.

Court acknowledged that traditionally the test for the first-degree assault is primarily one regarding the severity of the injury rather than the nature of the attack.

However, court distinguished Floyd from the present case because this V felt like she was losing consciousness and thought she was going to die.

Court relied on Cooper, 569 S.W.2d (1978) where elderly V was choked and raped, extensively bruised, where the “mental trauma was such that her mind retreated from the horror of what was happening to her and she blacked out” and the injuries she sustained were sufficient to show strangulation posed a substantial risk of death.

Comment: No difference between the two cases except two questions: how did you feel when pressure was applied? And what did you think was going to happen?

Court cited to Hocker, 865 SW 2d 323, “choking is unique form of assault in that it may not leave a severe resulting injury, but may create a substantial risk of death. No abuse of discretion in this case when the court denied D’s motion for directed verdict.

 

Edmonds v. Comm, 433 SW3d 309 (2014)

D guilty of sodomy, wanton endangerment, intimidation, threats and PFO. NG on rape. Sentenced to 30 years.

D appealed testimony of SANE Edlin as improper consistent statement, outside medical diagnosis & impermissible expert testimony.

Court disagreed: How a V sustained her injuries is critical information in discerning the source of the injury and relevant.

Despite prior precedence for not admitting identity of the suspect, this case is distinguishable as it was indirect identity and his identity was intertwined with the information directly provided to the nurse. No undue prejudice present. No abuse of discretion.

V reported a hoarse voice, trouble breathing, difficulty swallowing, abrasions on her neck. FN testified these symptoms were consistent with strangulation.

Injuries on the neck can be caused by the attacker or self-inflicted  by the victim trying to pry the attacker’s hands off her neck – also consistent. She based her testimony on her experience with other strangled victims which is appropriate TM for an expert. Experts don’t have to see it to testify to it.

Hord v. Kentucky, 2015 WL 5644151, Unpublished

The defendant held the victim against her will, raped her, and strangled her. Her sister was worried about her and called police for welfare check.

Police arrived and found the victim. They took her for a medical treatment and sexual exam.

The defendant was subsequently charged with wanton endangerment for strangulation, plus.

A nurse testified as expert on the ”dangers of strangulation.” Continuous pressure will cause loss of consciousness within seconds and death within minutes.

The defendant was acquitted of everything except for nonfatal strangulation. He was sentenced to 5 years.

On appeal, the defendant claimed there was insufficient evidence – he claimed there was no evidence that he created a substantial danger of death or serious physical injury.

The defendant also claimed that the nurse was not specifically trained in strangulation and that the victim engaged in consensual rough sex that included erotic asphyxiation.

Wanton endangerment in the first degree is when a person under circumstances manifesting extreme indifference to the value of human life wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.

The rough sex defense wasn’t discussed in the case and was not taken seriously.

The forensic nurse testified that loss of consciousness could occur within seconds and death within minutes.

The court of appeals held that this testimony precluded the trial court from granting the defendant’s motion for a directed verdict. Plus, the victim testified that she thought she may have lost consciousness but wasn’t sure. That’s sufficient evidence.

The defendant also challenged the qualification of the forensic nurse’s expert testimony because there was no foundation laid as to her training or experience handling strangulation cases. While she testified to handling 300 sexual assault exams, it was unknown what specialized training in strangulation she had and also unknown how many strangulation cases she handled.

Overall, the Court of Appeals did not believe there was an abuse discretion given her extensive experience and training as a SANE.

The defendant’s final argument was the victim’s Impact Statement.

Because he was acquitted of rape, he did not believe the victim should have been permitted to have testified about rape at sentencing. The victim essentially said she reported this crime and testified in this case because she didn’t want anyone else to be raped and wanted the truth to be told. Even if the jury didn’t believe her, she knew that God and her knew what happened.

The Court of Appeals disagreed with the defendant. The purpose of the victim impact statement is to give the jury an understanding of the impact of the crime, and it is permissible for the victim to describe what happened and extent of the physical, psychological or financial harm suffered.

The jury in the guilt phase is also allowed to consider all the evidence introduced in the penalty phase.

Note: the defendant claimed consensual rough sex as his defense, but it wasnot addressed in the appellate decision.

Vasquez v. Najera, 2017 WL 2210740 Unpublished

The victim sought a DVO against her ex-boyfriend.

There was a history of domestic violence, including multiple nonfatal strangulations, death threats, and even breaking into her house before the hearing where he assaulted her.

Standard is preponderance of evidence and is satisfied if evidence shows more likely than not she was a victim of DV.

DV includes physical injury, serious physical injury, sexual abuse, assault or infliction of fear of imminent physical injury, serious physical injury, or assault between family member.

The defendant claimed no one saw him strangle her, and there was no corroboration to her testimony.

Kentucky law allows trial court to believe one party over another based on all the circumstances including witness credibility.

The trial court believed the victim.

Thomas v. Commonwealth (1892) 14 Ky.L.Rptr. 288

The defendant and victim were acquaintances.

Neighbors saw the defendant enter the house around 7am without knocking, but they did not see him leave. He was acting suspicious.

The victim’s husband already had left for work.

The victim was later found dead at 10am. Unclear if strangled manually or by ligature, it didn’t matter.

Comment: No victim. No DNA. No 911. No video surveillance, no body cam.

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