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Evans v. Commonwealth

Court of Appeals of Kentucky

February 23, 2018



          Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLANT

          Andy Beshear Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE



          MAZE, JUDGE

         This appeal arises from a Lyon Circuit Court convicting the Appellant, Garfield Evans, for three counts of third-degree assault. As the record shows the trial court correctly denied Appellant's motion for directed verdict, we affirm on that issue. However, because palpable error resulted from the Commonwealth's closing at sentencing, we reverse and remand on that issue.


         The Appellant, Garfield Donte Evans (Evans), was an inmate at the Kentucky State Penitentiary in Eddyville, Kentucky. He had a long history of mental illness and was serving a four-year sentence. On January 15, 2015, Evans was in a segregation unit because he had threatened to harm himself. In this unit he was observed at all times. On the 15th, Evans was to be moved to a different cell block. When officers attempted to move him, he removed the smock he was wearing and placed it in the toilet in his cell. He then flushed the toilet several times in an alleged attempt to flood his cell. He then removed the smock from the toilet and threw it towards the three officers. The liquid on the smock splashed the officers and splashed into the eye of one of the officers.

         Based on this incident, Evans was indicted on three counts of assault in the third degree. KRS[1] 508.025. A jury trial was held on July 19, 2016. At the trial, all three officers testified that the smock had been submerged in the toilet and that the liquid that hit them smelled strongly of urine. The officers admitted, however, that they did not see Evans urinate. Evans's counsel motioned for a directed verdict at the close of argument on the basis that no testimony proved that Evans had urinated in the toilet. The court overruled the motion citing to the fact that all three officers testified the smock was in the toilet and the liquid smelled strongly of urine. The jury found Evans guilty of three counts of third-degree assault.

         At the sentencing phase of the hearing, the Commonwealth told jurors that their verdict needed to serve as a deterrent to other prisoners and that the jury was speaking as one voice for the community. The Commonwealth called as a witness an employee of the Department of Probation and Parole. The witness testified, among other things, that if the jury returned a maximum verdict of five years on each count, running consecutively, Evans would be eligible for parole in three years. The Commonwealth, however, told the jury that if they gave Evans the maximum fifteen years, "he's only looking at three years to serve, " referencing the testimony of the witness.

         During deliberations, members of the jury had questions pertaining to whether their decision had to be unanimous and how much time Evans would have to serve if they came back with four years for each count. The trial court was unable to answer their question pertaining to time served and the jury ultimately recommended four years for each count. The jury recommended that those sentences be run consecutively. Evans appeals from the denial of his directed verdict motion and from the unpreserved error of the Commonwealth's closing in the sentencing phase.

         Standard of Review

         On appellate review, a trial court's denial of a motion for directed verdict should only be reversed "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d. 3, 4-5 (Ky. 1983)). In determining whether to grant a motion for directed verdict, the trial court must consider the evidence as a whole, presume the Commonwealth's proof is true, draw all reasonable inferences in favor of the Commonwealth, and leave questions of weight and credibility to the jury. Id. "[T]he trial court is expressly authorized to direct a verdict for the defendant if the [Commonwealth] produces no more than a mere scintilla of evidence." Id. at 187-88.

         When reviewing an unpreserved error, we may grant relief of a palpable error if we find that "manifest injustice has resulted from the error." RCr[2] 10.26. Such injustice occurs only when the alleged error "seriously affected the fairness, integrity, or public reputation of the proceeding." Newcomb v. Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)) (internal quotations omitted). In other words, we inquire as to whether the result ...

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