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.
