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Rowe v. Commonwealth7/6/2001
REVERSING AND REMANDING
Irvin C. Rowe has appealed from a judgment and sentence following a jury trial in the Calloway Circuit Court where he was convicted of assault in the second degree, operating a motor vehicle under the influence, and carrying a concealed deadly weapon. Rowe was sentenced to prison for seven years. Having concluded that the trial court committed reversible error by refusing to instruct the jury on the offense of assault in the fourth degree, we reverse and remand for a new trial.
Rowe raises four issues in his appeal: (1) whether the trial court erred by refusing to instruct the jury on the lesser-included offense of assault in the fourth degree; (2) whether the trial court erred by allowing the Commonwealth to cross-examine Rowe about his previous violation and misdemeanor convictions; (3) whether the trial court erred in denying Rowe's motion for a mistrial when the Commonwealth's Attorney asked Rowe if his companion on the night of the altercation was a convicted felon; and (4) whether the trial court erred by allowing the Commonwealth to introduce certain hearsay evidence.
At Rowe's trial on June 24, 1999, the evidence showed that on May 9, 1998, at the courthouse square in Murray, Kentucky, Rowe struck Jason Henson in the mouth with his forearm and/or elbow. This blow to Henson's mouth caused four of his lower, front teeth to be knocked back at approximately a 45-degree angle and the teeth had to be reset by using an arch bar. The extent of Henson's injury is at the center of this appeal.
Although both sides strongly contest the events that led up to the altercation between Rowe and Henson, for purposes of this Opinion it is not necessary to rehash the entire trial. While Rowe did not deny hitting Henson, he claimed he was acting in self-defense. If the jury did not accept Rowe's defense of self-protection, the evidence presented at trial was sufficient to convict Rowe of either assault in the first degree or assault in the fourth degree. We must determine whether as a matter of law the Commonwealth proved that the injury Henson suffered as a result of the blow by Rowe constituted "serious physical injury." If so, then Rowe was not entitled to a jury instruction for assault in the fourth degree.
A defendant is not entitled to an instruction on a lesser- included offense unless the evidence is "`such as to create a reasonable doubt as to whether the defendant is guilty of the higher or lower degree.'" Here, the trial court refused to give Rowe an instruction on assault in the fourth degree and instructed the jury only on assault in the second degree.
KRS 508.020 sets out the following elements for assault in the second degree:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
KRS 508.030 sets out the following elements for assault in the fourth degree:
(a) He intentionally or wantonly causes physical injury to another person; or
(b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
Henson testified that his chin was broken, and that in order for his teeth to be reset properly it was necessary for his mouth to be wired and for him to wear an arch bar for six weeks. Henson also testified that his injury required stitches; that he could not eat solid foods for some tim
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