                                '




               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                  · RENDERED: APRIL 27, 2017


                 ""uprnnt ~foutf nf ~~~[,
                               2016-SC-000069-MR                      ·


JAMES R. O'BANNON, JR.
                                                        [Q)ffi\LI~ 5/lr-/17 J<,;., @J~r,,Dc.
                                                                    APPELLANT


                 ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                HONORABLE A.C. MCKAY CHAUVIN, JUDGE
                             NO. 14-CR-000776


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



                    MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


         On March 14, 2014, Appellant, James O'Bannon, Jr., while .driving in

Jefferson County, Kentucky, disregarded a stop sign, and struck a minivan

carrying one adult, three teenagers, and two infant children_ One of the infants

died from ~er resulting injuries, while the other. infant sustained a skull

fracture. The driver of the van and the teenagers suffered non-life threatening

injuries. Blood tests were administered to Appellant shortly after the accident,

revealing the presence of marijuana and a blood alcohol level well over the legal

limit.

         On March 26, 2014, a Jefferson County Grand Jury indicted Appellant.

On October 23, 2015, a Jefferson Circuit.Court Jury found Appellant guilty of

murder, two counts of first-degree assault, one count of second-degree assault, .    --
and two counts of wanton endangerment, operating a motor vehicle while

intoxicated, and being a persistent felony offender in the first degree. The jury

recommended that Appellant serve twenty-five years for murder, ten years for

two counts of first-degree assault, five years for seconq_-degree assault, and one

year for both charges of first-degree wanton endangerment, enhanced to

twenty-five years for being a persistent felony offender, with the sentences to

run concurrently for a total of twenty-five years' imprisonment. The trial court

sentenced Appellant in conformity with the jury's recommended sentence.

Appellant now appeals his conviction and sentence as a matter ofright

pursuant to§ 1,10(2)(b) of the Kentucky Constitution.

      Appellant's first assignment of error is that the trial court failed to

provide the jury with the proper instructions for first-degree assault. More

specifically, Appellant complains that the jury instructions failed to include

language that Appellant acted under circumstances manifesting extreme

indifference to the value of human life. Appellant concedes that this issue is

unpreserved for our review. Nonetheless, Appellant requests that this Court

review the matter for palpable error pursuant to Kentucky Rules of Criminal

Procedure ("RCr") 10.26.

      This Court has long held that "[i]n a criminal case, the Constitution of

the United States mandates the government must prove every element of the

charged offense beyond a reasonable doubt." Anderson v. Commonwealth, 352

S.W.3d 577,581 (Ky. 2011) (citing In re Winship, 397 U.S. 358,364 (1970)). In

Kentucky Revised Statutes ("KRS") 508.010, the following requisite elements for

                                         2
the crime of assault in the first degree are set forth: "Under circumstances

manifesting extreme indifference to the value of human life [a person] wantonly

engages in conduct which creates a grave risk of death to another and thereby

causes serious physical injury to another person."

      The trial court's instruction to the jury read as follows:

      You shall find Mr. O'Bannon guilty under this instruction if ... (1)
      That in this county on or about March 14, 2014, Mr. O'Bannon
      caused serious physical injury* to [the victim] when he drove a
      truck into a van in which she was a passenger; -and- (2) That at
      the time the injury occurred, Mr. O'Bannon was wantonly* engaged
      in conduct which created a grave risk of death to another.

      *"Wantonly''- A person acts wantonly with respect to a result or to
      a circumstance when he is aware of and consciously disregards a
      substantial and unjustifiable risk that the result will occur or that
      the circumstances exists. The risk must be of such a nature and
      degree that disregard thereof constitutes a gross deviation from the
      standard of conduct that a reasonable person would observe in the
      situation.

      It is apparent that the phrase "under circumstances manifesting extreme

indifference to the- value of human life" is missing from the jury's instructions.

This phrase describes the aggravated level of wantonness which differentiates

first-degree assault from the lesser offense of second-degree assault. KRS

508.010; see Bell v. Commonwealth, 122 S.W.3d 490, 496 (Ky. 2003). As the

statute proscribing the crime of first-degree assault necessitates, the

Commonwealth was required to demonstrate beyond a reasonable doubt that

Appellant possessed more than just a wanton state of mind, and that he acted

wantonly with extreme indifference to human life. Consequently, we find error

with the trial court's instructions.


                                         3
      Despite the erroneous jury instructions, we do not believe Appellant

suffered prejudice. Appellant's charges were predicated on the single criminal

act of driving impaired. It is from this particular action that the resulting

injuries and charges occurred-murder for the death of one passenger:, assault

for the three seriously injured passengers, and wanton endangerment for the

remaining passenger and driver. The jury instructions for the murder and

wanton endangerment charges required a finding that Appellant acted "under

circumstances manifesting an extreme indifference to human life." The jury

found the Appellant guilty beyond a reasonable doubt on those charges.

Thusly, the jury did in fact evaluate Appellant's state of mind with respect to

his decision to drive overtly impaired and found that he acted with a

heightened level of wantonness. Consequently, Appellant has failed to

demonstrate that he has suffered a manifest injustice requiring reversal of his

convictions. There was no palpable error.

      Appellant also argues that the trial court committed reversible error

when it permitted Dr. Mary Fallat to testify regarding the injuries of one of the

teenage passengers, Dasia Frazier. Once more, Appellant acknowledges that

this issue is unpreserved and requests palpable error review.

      The Commonwealth's witness, Dr: Fallat, is a pediatric surgeon who was

working at the hospital where the five minors were treated following the

accident. Dr. Fallat treated two of the victims, but she did not personally treat

Dasia. For that reason, Dr. Fallat relied upon Dasia's hospital records and

interpreted the findings to the jury. Appellant now complains that the trial

                                        4
court erred in allowing Dr. Fallat to testify regarding Dasia's injuries because

her opinion was not based on her own personal perception and the testimony

constituted hearsay. Since Dr. Fallat's testimony is the only evidence

concerning the extent of Dasia's injuries, Appellant contends that there was

not enough evidence to convict him of first-degree assault.

      Appellant relies on ample case law to support his argument. However,

all of those cases concern the admission of lay testimony, not expert testimony.

Appellant has not provided us with any precedential authority dictating that an

expert witness must have personally perceived the injuries of a patient in order

to testify to that patient's injuries and treatment. On the contrary, Kentucky

Rules of Evidence ("KRE") 702 permits expert opinion testimony based upon

out-of-court documents, such as medical records. Moreover, KRE 703 allows a

testifying expert to rely on materials, including inadmissible hearsay, in

forming the basis of his or her opinion.

      Furthermore, we find merit in the Commonwealth's assertion that

Appellant's failure to object to Dr. Fallat's testimony was strategic. At no point

during the trial did Appellant attempt to contest the existence or extent of

Dasia's injuries, nor did Appellant choose to cross-examine Dr. Fallat. As the

Commonwealth points out, Appellant likely chose not to draw the jury's

attention to the extent of Dasia's injuries. In Commonwealth v. Rieder, this

Court explained that "when an objection is not voiced by the appellant's

counsel at trial, we are left to wonder if trial strategy might be the motivating

force for remaining silent." 474 S.W.3d 143, 147 (Ky. 2015). In this regard,

                                           5
the Court ordinarily bounds a defendant to trial counsel's strategic and tactical

decisions. West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) ..

      In Chavies v. Commonwealth, we stated that a palpable error is that

which is "so egregious that it jumps off the page . . . and cries out for relief."

374 S.W.3d 313, 322-23 (Ky. 2012) (quoting Alford v. Commonwealth, 338

S.W.3d 240, 251 (Ky. 2011) (Cunningham, J., concurring)). We find no such

error before us.

      For the foregoing reasons, the judgment and sentence of the Jefferson

Circuit Court is hereby affirmed.

      All sitting. All concur.·




COUNSEL FOR APPELLANT:

Daniel T. Goyette
Joshua Hartman
Louisville Metro Public Defender



COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General




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