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Commonwealth v. Mitchell

Supreme Court of Kentucky

April 27, 2017



          COUNSEL FOR APPELLANT: Andy Beshear, Attorney General of Kentucky Leilani K.M. Martin Assistant Attorney General Office of the Attorney General

          COUNSEL FOR APPELLEE: Roy Alyette Durham, II Assistant Public Advocate Department of Public Advocacy



         Kentucky Revised Statute (KRS) 501.030, one of the foundational provisions of the Penal Code, provides generally that a person may not be found guilty of a criminal offense unless

(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and (2) He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense.

(emphasis supplied). These are the Penal Code versions of the ancient "actus reas" and "mens rea" requirements for criminal liability. As the emphasized portion of the statute indicates, the Penal Code allows for criminal liability premised upon a person's failure to act, but only in limited circumstances. At the time of the alleged omission, the defendant must have been under a legal duty to act (as opposed to a moral or some other sort of extra-legal duty), such that his or her inaction amounted to a breach of that duty. And even then liability is appropriate only if the duty was one which the person was physically capable of performing. In this case, the Court of Appeals reversed Rita Mitchell's conviction for having assaulted by neglect a severely disabled young man who lived with her, concluding that the Commonwealth had failed, contrary to KRS 501.030(1), to show that Mitchell had a duty to care for the young man. We granted the Commonwealth's motion for discretionary review to further consider the law of criminal omissions from the perspective this case affords. While we agree with the Court of Appeals that the Commonwealth did not properly plead its case against Mitchell, we are convinced that the remedy adopted by that Court-dismissal of Mitchell's assault charge-goes too far. Accordingly, we reverse the Opinion by the Court of Appeals. Because we reverse the assault portion of Mitchell's Judgment on different grounds that leave that charge subject to retrial, we also remand for additional proceedings.


         In October 2010, in response to reports that a "boy" was being "kept" in deplorable conditions, Monroe County police officers, fire and rescue workers, and a social worker from the local Cabinet for Family and Health Services office were all summoned to a mobile home on Mudlick Flippin Road in Tompkinsville. The home was owned by Donna Bartley, but at the time its only occupants, aside from a large pack of dogs, were two people: Rita Mitchell, Bartley's long-time friend and until recently house-mate, and Bartley's then twenty-four year-old son, a young man we shall refer to as James.

         Mitchell and James are both impaired and both have received Social Security Disability Benefits for several years. Although the full nature and extent of Mitchell's disabilities were not disclosed at trial, Mitchell testified that in October 2010 and for some time prior, she suffered from chronic obstructive pulmonary disease (COPD), a condition which limited her mobility and for which she required an artificial oxygen supply. She also suffered, she testified, from chronic depression, which in the fall of 2010 had become acute and disabling.

         James suffers from cerebral palsy, significant intellectual disability, and possibly from autism. These significant conditions have, throughout his life, made him highly dependent on others for the provision of even life's most basic necessities, such as food, clothing, shelter, mobility, and health care. The record does not indicate how Bartley managed to care for James during his first seven years, but according to Mitchell's testimony, when James was about seven, Bartley and Mitchell, who had known each other from childhood, agreed to become house-mates. Bartley was to provide the residence and to manage the household in exchange for Mitchell's help with the cooking, cleaning, and care of James as well as Mitchell's contribution of her disability benefits to the household income. This arrangement worked well enough that it continued even after Bartley had a second and then a third child, a son and a daughter, for both of whom Mitchell helped to care. A social worker testified that he visited the Bartley residence in 2003, while Bartley and Mitchell were caring for all three children, and found the home clean and orderly and the children, including James, adequately provided for.

         By late spring or early summer of 2010, however, Bartley and Mitchell's arrangement had begun to break down. During that period, Bartley and her two younger children, by then teenagers, moved to a new home in Glasgow, Barren County, Kentucky, while Mitchell and James were left behind in the Monroe County mobile home. The original plan, apparently, was to have the mobile home moved to Glasgow near where the others were living, but for whatever reason that move did not occur. Instead, Bartley increasingly disassociated herself from her son and Mitchell and from their difficult circumstances. Although she remained in control of the purse strings, including Mitchell's and James's social security benefits, Bartley ceased to make the mortgage payments on the mobile home; ceased to provide for trash removal; ceased to pay for water service, which was discontinued in August 2010; and visited the mobile home only on weekends, delivering food and a few gallons of water.

         Mitchell was unable to cope with this virtual abandonment. We have described elsewhere the deplorable condition in which the rescue workers found the Monroe County mobile home in October 2010. See Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013). Suffice it to say here, that by then trash had piled up outside the residence, the residence had been overrun by more than twenty semi-feral dogs, whose filth had accumulated on the floors and furniture, and Mitchell had apparently ceased making any effort to care for James, beyond perhaps giving him some water and the microwavable snack foods that Bartley provided. In a back room with the radio blaring to drown out the young man's screams, the rescue workers found James naked on a bare mattress across which had been spread a sheet of plastic. His skin hung in loose folds, his teeth had rotted, his toe-and fingernails were inches long, and he lay in a pool of his own excrement, the waste covering his body literally from head to toe, including his face and teeth. Medical evidence showed that James suffered such severe muscle deterioration that it was months before he regained the ability to stand and the limited ability to walk. From lying too long in one position, one of James's clavicles had become displaced and his shoulder had collapsed inward. He lost all of his teeth.

         As bad as James's plight was (and to a person the rescue workers testified that they had never before encountered a scene as wrenching), the treating physician testified that for James the outcome easily could have been even worse. James's exposure to his excrement had put him at great risk, according to the physician, of E-coli infection, which can be fatal. And the disruption to James's digestive system, which had developed a gas blockage as a result of inadequate and irregular meals, also created, the doctor testified, a substantial risk of permanent, even fatal, bowel injury.

         In December 2010 the Monroe County grand jury indicted Bartley and Mitchell. Both women were charged with first-degree criminal abuse of James, under KRS 508.100, [1] and with first-degree assault, under KRS 508.010. With respect to both women, the latter charge alleged, among other things, that they had caused James serious physical injury by "severely neglecting to meet his physical needs."[2]

         The cases were consolidated, and the women were jointly tried over two days in September 2011. The jury found both of them guilty of first-degree assault, found Bartley guilty of first-degree (intentional) criminal abuse, and found Mitchell guilty of second-degree (wanton) criminal abuse. In accord with the jury's recommendations, Bartley was ultimately sentenced to consecutive terms of twenty years for first-degree assault plus ten years for first-degree criminal abuse, and Mitchell was sentenced to twelve years for first-degree assault plus five years for second-degree criminal abuse. Bartley appealed as of right directly to this Court, and in Bartley, 400 S.W.3d at 714, we affirmed the judgment against her in its entirety.

         In December 2012, the Court of Appeals granted Mitchell's request for leave to file a belated appeal, and then in December 2014, as noted above, the appellate panel affirmed Mitchell's second-degree criminal abuse conviction, but reversed her conviction for first-degree assault. With respect to the assault, the panel concluded that Mitchell could not be said to have assumed a legal duty to care for James, since she had done nothing to prevent Bartley, the biological mother, from providing that care in the first instance. In the Court of Appeals' view, Mitchell, having no duty as required under KRS 501.030(1), could not be found criminally liable for the alleged omission to perform that duty. They concluded that, "the circuit court erred by denying her [Mitchell's] motion for a directed verdict of acquittal upon the offense of first-degree assault."

         The Commonwealth contends that in so ruling the Court of Appeals erred both procedurally and substantively: procedurally by reviewing a purported trial-court error that Mitchell did not adequately preserve, and substantively, among other reasons, by failing to consider Staples v. Commonwealth, 454 S.W.3d 803 (Ky. 2014), in which this Court discussed circumstances wherein a non-parent could have a duty under the criminal abuse statutes to protect a child even against abuses by the child's own parent.

         We acknowledge the Commonwealth's concerns and agree with it that Mitchell was not entitled to a directed verdict, but further conclude that reinstatement of the assault conviction is not appropriate. Although Mitchell was not entitled to no assault instruction-the Court of Appeals' conclusion- she was entitled to an assault instruction that accurately reflected the law being invoked against her. In her case, unlike that of her codefendant, the victim's mother whose parental duties were clear, the trial court's failure to provide such an instruction, together with other consequences of the unspecified allegations, amounted to a palpable error at odds with Mitchell's right to fundamentally fair proceedings. Accordingly, we reverse the Court of Appeals' decision, which in ...

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