Bray A. Nelson v. Commonwealth of Kentucky ( 2020 )

RENDERED: NOVEMBER 6, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0976-MR
BRAY A. NELSON APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE
ACTION NO. 17-CR-00191
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: Appellant Bray Nelson was convicted of criminal abuse in
the first degree in the Boone Circuit Court. He was sentenced by the court to a
term of imprisonment of five (5) years. He appeals his conviction, arguing that the
Commonwealth presented insufficient evidence of guilt and that consequently the
trial court should have entered a directed verdict. We find that the prosecution did
provide sufficient evidence of guilt and the trial court properly denied the motion
for a directed verdict. We affirm.
FACTS
Bray Nelson (Nelson) was an employee of the Campbell County Jail
when he met Angel, a fellow employee. Despite his being married with children,
Nelson and Angel had a more than platonic relationship. Despite this impropriety,
Angel was friendly with Nelson’s wife and Angel’s two-year-old son was friends
with Nelson’s two small children; Angel would often babysit the Nelson children
and the Nelsons reciprocated.
On February 18, 2017, Angel was scheduled to work an overnight
shift at the Boone County Jail and the Nelsons were going to watch her young son
for her. She dropped her son off on her way to work and then after her shift ended
she returned to the Nelson home. Nelson let her in the home when she arrived and
told her that her son was fine, and he was still asleep. Angel saw her son asleep in
the living room and then went downstairs to sleep for a bit.
After her nap, Angel and Nelson engaged in sexual activity and only
after did she interact with her child and notice he had bruising on his body in
several locations. Angel testified that Nelson admitted having “whipped” the child
when he would not stop crying and go to sleep, and Nelson admitted having used a
belt on the back of the child’s legs, which were covered in a large bruise. Angel
-2-
testified she was too frightened of Nelson to confront him about the “whipping,”
and stayed at the Nelson home that day with the child, even having dinner with the
family.
She was supposed to meet the child’s father at a predetermined
location for a scheduled custody exchange that evening, but instead when she left
the Nelson home with the child, she drove directly to the father’s residence and
showed him the bruises. They took the child to the local hospital and he was
transported via ambulance for his safety to Cincinnati Children’s Hospital. The
child was released early in the morning of the next day and had no permanent
injuries due to the “whipping.”
When the police contacted Angel to investigate the matter, she did not
tell them she was involved romantically with Nelson, nor did she initially tell them
that he had admitted “whipping” the child with a belt to her. Rather, she told the
authorities that the child had simply fallen while playing at the park. The detective
had Angel call Nelson on a recorded line, and during the call he admitted having
caused the bruises with a belt.
When interviewed, Nelson admitted “spanking” Angel’s son with an
open hand the night he was watching him for her and said he did so three or four
times. He denied trying to hurt the child, insisting he was disciplining him as he
did his own children. After being confronted with the recording of the call with
-3-
Angel wherein he had stated using a belt, he admitted to police that he had held the
child by the arm with one hand and used a belt to strike him with the other.
Angel testified at the trial and the jury was shown photographs of the
child’s bruises. Nelson testified in his own defense and denied having used a belt,
despite having told the detective he had done so. He explained that he had only
said such to the police to protect his wife from being implicated in the abuse of the
child, as he didn’t think she had been truthful with him about her actions towards
the child. He denied intending to cause the child any injury and insisted he was
simply trying to discipline him for crying for his mother after she left.
The jury found Nelson guilty of criminal abuse in the first degree and
recommended a total sentence of imprisonment of seven and a half years. The trial
court imposed a five-year sentence over the jury’s recommendation. Nelson
appeals, arguing that the trial court erred in not granting a directed verdict after the
prosecution failed to offer sufficient proof of intent to harm and cruel punishment,
both elements of the offense.
STANDARD OF REVIEW
The Kentucky Supreme Court, in a similar case involving the criminal
abuse of a two-year-old child, clearly articulated the standard on reviewing the
denial of a motion for directed verdict.
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
-4-
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Mason v. Commonwealth, 331 S.W.3d 610, 616 (Ky. 2011) (citing Commonwealth
v. Benham, 816 S.W.2d 186 (Ky. 1991)).
ANALYSIS
At the outset, we note that Nelson failed to properly preserve for
appellate review his motion for directed verdict by failing to renew the motion
after the defense presented its case to the jury, something he acknowledges, and
thus he requests palpable error review pursuant to Kentucky Rules of Criminal
Procedure (RCr) 10.26.
It is black-letter law that, in order to preserve an
insufficiency-of-the-evidence allegation for appellate
review, “[a] defendant must renew his motion for a
directed verdict, thus allowing the trial court the
opportunity to pass on the issue in light of all the
evidence[.]” In other words, a motion for directed
verdict made after the close of the Commonwealth’s
case-in-chief, but not renewed at the close of all
evidence—i.e., after the defense presents its evidence (if
it does so) or after the Commonwealth’s rebuttal
-5-
evidence—is insufficient to preserve an error based upon
insufficiency of the evidence. In this case, Appellant
moved for a directed verdict at the close of the
Commonwealth’s case, but did not renew the motion at
the close of evidence, and Appellant admits that he failed
to properly preserve the issue he presents to us.
Appellant however urges us to review the
sufficiency of the Commonwealth’s evidence under RCr
10.26 and alleges that the trial court’s failure to direct a
verdict of acquittal constituted palpable error. A palpable
error is one of that [sic] “affects the substantial rights of a
party” and will result in “manifest injustice” if not
considered by the court, and “[w]hat it really boils down
to is that if upon a consideration of the whole case this
court does not believe there is a substantial possibility
that the result would have been any different, the
irregularity will be held nonprejudicial.” We recognize
not only that “the burden is on the government in a
criminal case to prove every element of the charged
offense beyond a reasonable doubt and that the failure to
do so is an error of Constitutional magnitude,” but also
that the nature of the error alleged here is such that, if the
trial court did, in fact, err by failing to direct a verdict of
acquittal, that failure would undoubtably have affected
Appellant’s substantial rights. And, we likewise observe
that the trial result necessarily would have been different
if the trial court had directed a verdict in Appellant’s
favor. Accordingly, we examine the merits of Appellant’s
allegation.
Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836-37 (Ky. 2003) (citations
omitted).
Thus, if insufficient evidence was presented to the jury such that a
directed verdict should have been entered, that circumstance would amount to
-6-
palpable error. Therefore, we will review Nelson’s allegations of error despite the
lack of preservation.
Kentucky Revised Statutes (KRS) 508.100 defines the offense of
criminal abuse in the first degree.
(1) A person is guilty of criminal abuse in the first degree
when he intentionally abuses another person or permits
another person of whom he has actual custody to be
abused and thereby:
(a) Causes serious physical injury; or
(b) Places him in a situation that may cause him
serious physical injury; or
(c) Causes torture, cruel confinement or cruel
punishment; to a person twelve (12) years of age
or less, or who is physically helpless or mentally
helpless.
Nelson alleges that the prosecution failed to prove both that he acted
intentionally and that the child suffered cruel punishment, and assigns as error the
trial court’s refusal to enter a verdict on the sole count because of the failure of
proof.
As the Supreme Court made clear in Mason, supra, the jury is the
arbiter of credibility. Nelson testified he had told the detective that he had used a
belt on the child, but denied at trial having actually done so. Thus, the jury had a
choice of whether to believe that he had been truthful in his discussions with the
detective and Angel or whether he was being truthful during his testimony.
-7-
Further, it was not necessary that the jury believe that Nelson employed a belt
while striking the child; his admission that he had spanked the child with his hand,
given the severe bruising on the child, was sufficient to establish intent to harm the
child.
Rarely does a criminally accused person elucidate his intent to commit
a crime in a cogent and clear manner. Rather, intent is inferred from circumstances
and actions. As the Supreme Court stated in reversing this Court’s finding of
insufficient evidence of intent in a criminal abuse case:
Courts are to direct verdicts of not guilty only in
the most drastic situations where the Commonwealth has
failed to produce proof whereby reasonable jurors could
conclude beyond a reasonable doubt that a defendant is
guilty. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.
1991). Also, as clearly stated in Benham, in a motion for
directed verdict, “the trial court must draw all fair and
reasonable inferences from the evidence in favor of the
Commonwealth.” Id. at 187.
In assessing evidence as to sufficient proof of
intent in criminal cases, the requisite intent may be
determined from surrounding circumstances. All
elements of a crime, including intent, can be proven by
circumstantial evidence. Matheney v. Commonwealth,
191 S.W.3d 599 (Ky. 2006); Baker v. Commonwealth,
307 S.W.2d 773 (Ky. 1957); Denham v. Commonwealth,
239 Ky. 771, 40 S.W.2d 384 (1937); Commonwealth v.
Wolford, 4 S.W.3d 534 (Ky. 1999). Hardly is the
Commonwealth ever fortunate enough to present direct
proof as to the thought process in a defendant’s mind.
-8-
Commonwealth v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012), as modified on
denial of reh’g (Aug. 23, 2012).
There was clearly sufficient evidence of intent evident in the injuries
suffered by the child so as to establish that the blows were inflicted upon him in a
manner that a reasonable juror could determine displayed intent to harm the child.
The trial court did not err in refusing to direct a verdict because of failure to prove
intent.
Nelson also alleges that there was insufficient proof of cruel
punishment. Again, this is a jury question as to whether the injuries depicted in the
photographs were sufficient to prove the child was subjected to cruel punishment
and so find they did. “It is the jury’s function to determine whether the amount of
force used during a spanking constitutes cruel punishment.” Canler v.
Commonwealth, 870 S.W.2d 219, 222 (Ky. 1994).
The Commonwealth offered not only the photographic evidence of the
child’s extensive bruising, but medical evidence that the bruising was so deep and
substantial as to appear on a skeletal survey, which is a series of x-rays. The trial
court did not err in failing to enter a directed verdict as the Commonwealth offered
sufficient proof of cruel punishment.
We affirm.
ALL CONCUR.
-9-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky
-10-