Commonwealth v. Parson6/17/2004
alignment, and that the victim was unable to chew certain foods for four months after the assault was sufficient evidence of "prolonged impairment of health" to constitute "serious physical injury." Id . at 736-37 .
We conclude that pain is an "impairment of health ." if the pain is substantial, but not prolonged, it constitutes a "physical injury;" but if it is prolonged, then it is a "serious physical injury." Eberle's injuries resulted not only in headaches and neck pain, but also muscle spasms causing decreased range of neck motion, and numbness of her right arm. The numbness continued at least until her treatment by Dr. Zhou, which did not begin until five months after the assault. A jury could reasonably believe from the evidence that the combination of pain, lost range of motion, and arm numbness contributed substantially to Eberle's decision not to return to public employment. A jury could also believe that Eberle was still suffering from the effects of her injuries on the day of trial, nineteen months after the assault, and that the duration of those effects constituted a "prolonged impairment of health ." Thus, the jury was properly instructed on the offense of assault 2nd .
VI. DOUBLE ENHANCEMENT .
Appellant asserts that his sentences for DUI 4th and OSL/DUI 3rd were improperly enhanced under the PFO statute because the same offenses used to enhance the present DUI and OSL/DUI convictions to Class D felonies were also used to enhance prior offenses to Class D felonies, which were then used for present PFO enhancement .
The present DUI and OSL convictions resulted from verdicts rendered during the first phase of the trial . They were enhanced to DUI 4th and OSL/DUI 3rd during a second, separate phase of the trial . See Ramsey v. Commonwealth , Ky., 920 S .W.2d 526, 528-29 (1996) (prior DUI convictions used to enhance the underlying offense cannot be introduced in the guilt phase of the trial). To obtain the respective enhancements, the Commonwealth was required to prove three prior DUI convictions occurring within five years of May 30, 2000, and two prior OSL/DUI convictions. KRS 189A.010(5)(c), (10); KRS 189A.090(2)(c) . The Commonwealth proved five prior DUI convictions occurring on April 21, 1999, November 11, 1997, October 20, 1997, July 22, 1997, and January 20, 1997 ; and two prior OSL/DUl convictions occurring on November 11, 1997, and October 20, 1997 . After hearing this evidence, the jury returned additional verdicts enhancing the original convictions to DUI 4th and OSL/DUI 3rd, Class D felonies.
The trial then proceeded into the combination penalty/PFO phase. KRS 532 .055(2), (3) . For PFO 1 st enhancement, the Commonwealth was required to prove at least two prior felony convictions, one of which must have satisfied one of the time limitation requirements in KRS 532.080(3)(c), e .g., that Appellant completed service of the sentence imposed on any of the prior felony convictions within five years prior to the date of the commission of the present felony offense . Id ., (3)(c)(1) . The Commonwealth proved four prior felony convictions, i.e., DUI 4th and OSL/DUI 3rd convictions occurring on March 24, 1998, and two separate convictions of obtaining controlled substances by fraud or forgery, KRS 218A.140(1)(c), occurring on April 24, 1990, and October 31, 1990. Because the sentences for the March 24, 1998, convictions were ordered to be served concurrently, they merged into one conviction for PFO purposes. KRS 532 .080(4) . The Commonwealth concedes that only the March 24, 1998, convictions satisfy the time limitation requirements of KRS 532 .080(3)(c)(1) and KRS 532.080(2)(c) (same requirements apply to PFO 1 st and PFO 2nd enhancement) . T
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