2020 CA 000690
Ky. Ct. App.Mar 18, 2021Background
- Child O.W., who lived with his great-aunt Wanda Campbell from ages ~5–8, presented with burn and whip-type injuries observed by his teacher and investigators.
- O.W. testified Campbell burned his hands with a cigarette, whipped him with a belt (while others held him), and on a separate occasion restrained him with tape and a leash; Campbell admitted only to spanking him on his clothed bottom.
- Campbell was indicted on three counts of first-degree criminal abuse (KRS 508.100) arising from the three incidents; one count went to the jury for the alleged belt whipping incident.
- The jury convicted Campbell on two counts (including the belt-whipping count) and acquitted on the third; it recommended consecutive eight-year terms on each conviction (total 16 years).
- The trial court entered judgment imposing the recommended sentences, court costs (handwritten $175), and jail-fee reimbursement; Campbell appealed contesting sufficiency of evidence as to count two, the imposition/timing of court costs, and the jail-fee order.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Campbell) | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 2 (belt whipping) | Evidence (victim testimony, photos, other testimony) supports intentional abuse and cruel punishment; instrumentality not essential. | Jury’s doubt about instrumentality (foreperson noted uncertainty whether belt used; rejected hand) means no evidence supports a finding of whipping with anything other than hand or belt. | Affirmed conviction: statutory elements do not require unanimity on instrumentality; photographic and testimonial evidence sufficiently proved intentional abuse/cruel punishment. |
| Imposition and timing of court costs | Court costs are mandatory under statute unless defendant shown to be a “poor person”; trial court found Campbell not poor and imposed costs. | Trial court erred: improperly handwritten amount ($175), court must determine inability to pay for waiver, and payment deferred beyond one year (contrary to statute). | Reversed portion imposing court costs: judgment contained an impermissible amount and improperly deferred payment beyond one year; trial court should have properly addressed ability to pay. |
| Imposition of jail-fee reimbursement | County incurs daily out-of-pocket expense for housing detainees and may recover per KRS 441.265 where a county policy exists. | Trial court failed to find that a county jail-fee reimbursement policy was adopted as required; no proper record support for fee. | Reversed portion imposing jail fees: record lacks required finding that county adopted prisoner fee policy per statute. |
Key Cases Cited
- Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015) (standard for palpable error/manifest injustice review)
- Conrad v. Commonwealth, 534 S.W.3d 779 (Ky. 2017) (jury unanimity not defeated by disagreement on means of committing offense)
- Miller v. Commonwealth, 77 S.W.3d 566 (Ky. 2002) (same principle regarding means versus elements)
- King v. Commonwealth, 554 S.W.3d 343 (Ky. 2018) (elements of criminal abuse and that instrumentality need not be unanimous)
- Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014) (court costs illegal if ordered against a defendant established to be a "poor person")
- Sevier v. Commonwealth, 434 S.W.3d 443 (Ky. 2014) (costs improper without reasonable basis to believe defendant can pay)
- Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012) (imposition of costs requires consideration of defendant's ability to pay)
- Applegate v. Commonwealth, 577 S.W.3d 83 (Ky. App. 2018) (ordering payment installments starting after release can violate one-year payment requirement)
- Jones v. Commonwealth, 527 S.W.3d 820 (Ky. App. 2017) (uncertainty of release/payment within one year renders deferred payment improper)