ON REMAND FROM SUPREME COURT OF KENTUCKY ACTION NO. 2012-SC-000306-DG APPEAL FROM LEWIS CIRCUIT COURT HONORABLE ROBERT B. CONLEY, JUDGE ACTION NO. 09-CR-00020
The opinion of the court was delivered by: Combs, Judge
RENDERED: APRIL 26, 2013; 10:00 A.M.
AFFIRMING ** ** ** ** ** BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES.
Michael Moran appealed his conviction of fourth-degree assault in the Lewis Circuit Court. The Commonwealth petitioned for and was granted discretionary review by the Supreme Court of Kentucky. On the original appeal, this Court vacated Moran's conviction. This case now comes to us on remand from the Supreme Court of Kentucky, which has directed us to examine the case anew in the light of its ruling in Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), which was rendered six months after our decision. After our re-examination, we agree that our original disposition vacating and remanding now must be one affirming the Lewis Circuit Court.
Moran and the Commonwealth agree about the basic facts. In 2007, Moran and Amy Madden (now Amy Moran*fn1 ) began dating while Amy was married to Howard Madden. Amy and Moran attended the same EMS (Emergency Medical Service) class at Shawnee State Community College.
On January 20, 2009, Madden dropped Amy off at the EMS class and picked her up after class. On his way home, Moran saw Madden and Amy sitting in her red Ford Escort in the parking lot of a bank. Moran pulled into the parking lot and parked next to the passenger side of the Escort where Amy sat.
Moran and the Commonwealth disagree about what happened next. Moran claims that he merely asked Amy to talk to him. She told him to meet her at her parents' house. Moran contends that Madden got out of the car and approached Moran's truck, cursing and challenging him to fight. Moran backed up his truck to leave, and when he pulled forward, he accidentally ran over Madden's leg.
Madden, however, claims that when he got out of the Escort, he calmly and politely approached Moran's truck. Madden believed that Moran intentionally struck him with the truck and that he would have struck him again if Amy had not intervened.
The record shows that Madden spent approximately twenty days in the hospital recovering from the leg injury. Moran was charged with first-degree assault. Following a three-day jury trial in June 2010, Moran was convicted of assault in the fourth degree, a misdemeanor. He was sentenced to spend twelve months in jail. This appeal follows.
Moran's primary claim of error is that trial court erred when it allowed a jury instruction that permitted the jury to convict him of a crime without specifying the reason. He contends that the faulty instruction resulted in a verdict that was not unanimous. The instruction for assault in the fourth degree directed as follows:
If you do not find the Defendant Michael Moran guilty under Instruction No. 7 or Instruction No. 8, you will find the Defendant guilty of Fourth Degree Assault [sic] under this Instruction if, any [sic] only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about January 20, 2009 and within twelve months before the finding of the Indictment herein, he caused physical injury to ...