Commonwealth v. O'Conner

Opinion of the Court by Justice CUNNINGHAM. On August 24, 2007, Michelle Wright, a social worker with the Commonwealth of Kentucky Cabinet for Health and Family Services, made a visit to the Pulaski County, Kentucky home of Appellee, Patrick O’Conner. Mrs. Wright could observe Ap856 pellee’s three-year-old son, as well as his seven-month-old infant, through the window of their bedroom. However, after repeated knocking, she could not cause anyone to come to the door. She then called Deputy Sheriff Larry Wesley, who soon arrived upon the scene. They continued to knock and eventually Appellee opened the door. He admitted being asleep in the back bedroom. Upon entering the trailer, Mrs. Wright and Deputy Wesley observed a deplorable scene. The home was dirty and unkempt with animal feces. The kitchen was full of dirty dishes caked with moldy food and flies were plentiful. Clothes and trash were strewn throughout the living area. Also, there was no working toilet in the home. Appellee was in the residence with three of his children: a three-year-old girl who weighed only 22 pounds; a three-year-old boy who wore size eighteen-month clothes; and a seven-month-old infant boy. His wife was asleep in their bedroom and an older daughter was at preschool. The two boys earlier observed through the window were still in their stifling bedroom, the door to which was wedged shut from the hallway with a screwdriver so that it could not be opened from inside. The three-year-old girl was also confined in her bedroom with a hasp and padlock attached to the door. Although in mid-summer, the windows in both bedrooms were either closed or boarded up. There was no air-conditioning in the trailer and the only fans in operation were in Appellee’s bedroom, where he had been sleeping when Mrs. Wright and Deputy Wesley first arrived. The temperature in Pulaski County on the day that the investigation was made reached 104 degrees. The infant’s diaper was urine-soaked and the three-year-old boy, apparently from hunger, had eaten his own feces. Two of the children had specks of feces on their bodies and none of the children’s beds had linens. There was no food or water in the rooms where the children were confined. One of the boys had defecated under the dresser in his room and the one who was chewing on his feces complained of being hungry. The nightgown of the young girl locked in her room was also urine-soaked and she had an infected wound on her head. Appellee asserted that the children had been in their bedrooms for two hours and that he had set his alarm clock to awaken him at noon. A check of the alarm clock, however, revealed that it was set for 6:30 a.m. A relative of Appellee testified that, upon visiting the trailer three weeks earlier, the three children were locked inside their bedrooms. There was also evidence that a fire had previously broken out in the same bedroom in which the boys were confined. Social workers had made at least one prior visit to the home in June of 2007 and had found Appellee sleeping at three o’clock in the afternoon while the youngsters were locked in their bedrooms. On that occasion, the trailer was in a similar condition as it was on August 24th. On the previous visit, social workers had advised Appellee of the services available to him, including free daycare for the children so that he could work and provide for his family. At that time, Appellee was also advised that he should buy cheap fans to provide ventilation for the trailer. He heeded this instruction, but placed the fans in his own bedroom. Appellee was subsequently indicted by a Pulaski County grand jury for three counts of first-degree criminal abuse. More specifically, the grand jury charged that he intentionally abused the three chil — 857 — dren, each of which were under the age of twelve at the time, by placing them in a situation that could have caused physical injury or which was cruel confinement or cruel punishment. Appellee was sentenced to a five-year term of imprisonment for each count, to be served consecutively, for a total of fifteen years. Appellee appealed to the Court of Appeals, which reversed the judgment of the Pulaski Circuit Court. Appellee claimed that the trial court should have directed a verdict of not guilty on the charges of first-degree criminal abuse because there was insufficient evidence of his intent to commit the crimes. The Court of Appeals agreed, declaring there was insufficient evidence to indicate that criminal actions by Appellee were intentional. This Court is unanimous in deploring the unspeakable filth, unsanitary living conditions, and misery in which the three children were found. However, we are divided as to whether there was sufficient evidence of proof of Appellee’s requisite intent. KRS 508.100 defines the crime of first-degree criminal abuse as follows: (1) A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby: (a) Causes serious physical injury; or (b) Places him in a situation that may cause him serious physical injury; or (c) Causes torture, cruel confinement or cruel punishment; to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless. “Abuse” is defined by KRS 508.090(1) as the infliction of physical pain, injury or mental injury or the deprivation of services by a person which are necessary to maintain the health and welfare of a person or a situation in which adult, living alone, is unable to provide or obtain for himself the service which are necessary to maintain his health or welfare. In the prosecution of this case, the instructions required that the jury find Ap-pellee intentionally abused each of the three children, who were less than twelve years of age, thereby allowing them to be subjected to “cruel confinement or cruel punishment,” or causing them to be placed at risk of sustaining “serious physical injury” Courts are to direct verdicts of not guilty only in the most drastic situations where the Commonwealth has failed to produce proof whereby reasonable jurors could conclude beyond a reasonable doubt that a defendant is guilty. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). Also, as clearly stated in Ben-ham, in a motion for directed verdict, “the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.” Id. at 187. In assessing evidence as to sufficient proof of intent in criminal cases, the requisite intent may be determined from surrounding circumstances. All elements of a crime, including intent, can be proven by circumstantial evidence. Matheney v. Commonwealth, 191 S.W.3d 599 (Ky.2006); Baker v. Commonwealth, 307 S.W.2d 773 (Ky.1957); Denham v. Commonwealth, 239 Ky. 771, 40 S.W.2d 384 (1937); Commonwealth v. Wolford, 4 S.W.3d 534 (Ky. 1999). Hardly is the Commonwealth ever fortunate enough to present direct proof as to the thought process in a defendant’s mind. — 858 — In the Wolford murder trial, this Court was confronted with a slightly different twist from the one now before us. The Court of Appeals reversed manslaughter convictions of the defendants on the grounds that the facts of the case could only constitute an intentional murder. We find here, as we did in Wolford, that the Court of Appeals substituted its own fact-finding discretion in place of that of the jury. Whereas, in Wolford, we held that the jury could have reasonably concluded that the defendants were guilty of a lesser crime than murder, we find here that the jury had sufficient evidence to reasonably conclude that Appellee was guilty of the major offense of first-degree criminal abuse. Persons walking into Appellee’s trailer and surveying the scene on August 24, 2007, as did Michelle Wright and Deputy Sheriff Larry Wesley, could have reasonably concluded, based on their observations and what was presented to the jury, that these three children were being intentionally abused. Appellee was asleep in his bedroom in the middle of the day, cooled by the only fans in the trailer. The children — all of tender years — were locked in their rooms by way of wedge screwdrivers and hasps on one of the hottest days of the summer. The window in the room of the three-year-old girl was boarded up. The toddlers were clad in urine-soaked clothes and their filthy bodies were speckled with feces. One of the little boys was hungry to the point of eating his feces. All of this in spite of Appellee having been warned, on at least one. previous occasion, about these unacceptable living conditions. A fire had previously broken out in one of these rooms, requiring the door to be knocked down to rescue the child inside. These are all facts put before the jury and by which it was not unreasonable for them to conclude that the abuse of these helpless babes was intentional. As fully set out in Appellee’s brief, much evidence was advanced to explain these conditions. An abundance of exculpatory and mitigating matters was presented. However, it has been the long-standing law in this state that it is within the jury’s province to consider and believe, believe in part, or totally disregard as non-credible any evidence presented. Gillispie v. Commonwealth, 212 Ky. 472, 279 S.W. 671 (1926); Catlett v. Commonwealth, 246 S.W.2d 580 (Ky.1952); Bierman v. Klapheke, 967 S.W.2d 16 (Ky.1998). Like in Wolford, we find that the Court of Appeals did not properly defer to the jury its proper fact-finding role in this case. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the trial court for reinstatement of the trial order and judgment. MINTON, C.J.; ABRAMSON, NOBLE, SCHRODER and VENTERS, JJ., concur. SCOTT, J., dissents by separate opinion.