Friday, November 4, 2016

KYCOA - Forte - Proof of Serious Injury

Forte,James. 15-CA-00410. Reversing/remanding. 11/4/2016. To be published.

James Forte was found guilty of Robbery First-degree, Burglary First-degree and Assault Second-degree. He was found guilty of all crimes and sentenced to 10 years for both Robbery and Burglary and three years on the Assault, for a total of 13 years. Mr. Forte’s convictions for Robbery and Burglary were affirmed.

The Court of Appeals found palpable error because the prosecution presented insufficient evidence of the “serious physical injury” prong of the assault charge. The only persons who testified regarding the victim’s gunshot wound to the head were the victim and his companion. The victim said after he was shot, he suffered headaches “off and on” and had a small scar. The jury heard no evidence “establishing the nature and severity of the gunshot wound, how much blood was lost, the nature of the medical treatment, the severity of Bailey’s headaches, the time it took to recover, how much, if any, additional treatment Bailey received, or how much time, if any, Bailey took off from work in order to recover.” Thus, because it did not present any medical evidence was presented, the prosecution did not meet the “exacting level of proof” required by McDaniel v. Commonwealth, 415 S.W.3d 643, 660 (Ky. 2013).

Conflict trial counsel was Craig Newbern, DPA-Paducah. Julia K. Pearson of the Appeals Branch represented Mr. Forte on appeal.