IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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RENDERED: JUNE 16, 2016 

NOT TO BE PUBLISHED 

Suprrtnt court of 4 rnfuritv 

2015-SC-000444-MR 

GARY PENNINGTON APPELLANT 

ON APPEAL FROM LYON CIRCUIT COURT 

V. HONORABLE CLARENCE A. WOODALL, III, JUDGE 

NO. 14-CR-00025 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

A jury convicted Gary Pennington of first-degree assault based on a 

finding that the victim suffered "serious physical injury." Pennington now 

appeals as a matter of right, arguing that the trial court erred when it denied 

his request for the jury to be instructed on second-degree assault under the 

theory that the victim only suffered "physical injury." Having reviewed the 

record, the arguments of the parties, and the law, we affirm. 

I. BACKGROUND. 

On April 12, 2014, Pennington was an inmate at the Kentucky State 

Penitentiary serving as a kitchen worker. Following lunch service that day, 

Pennington went to the kitchen stockroom to help a contract kitchen worker, 

Joann Smith, refill salt and pepper shakers. For unknown reasons, 

Pennington attacked Ms. Smith, repeatedly hitting her on the head with the 
handle from a meat slicer. Pennington only stopped after another inmate and a 

correctional officer restrained him. 

Pennington was tried by a jury for first-degree assault on July 16, 2015. 

Ms. Smith and several other witnesses testified regarding the injuries she 

sustained as a result of Pennington's assault. The paramedic who first 

responded to the penitentiary testified that, following his initial assessment of 

Ms. Smith, he called for a helicopter to take her to a Level 1 Trauma. Center. 

The paramedic also testified that he could see bone through the lacerations on 

Ms. Smith's head. 

Dr. Christopher Haughn, a trauma surgeon, treated Ms. Smith 

immediately following the assault. Dr. Haughn testified that Ms. Smith 

sustained a significant orbital fracture; nine very deep lacerations mostly to her 

head, one of which required dressing changes while it healed because the 

tissue was too damaged to suture; and a concussion. According to Dr. 

Haughn, Ms. Smith did not suffer any bleeding in the brain, infection, or 

wound healing problems, and she was discharged from the hospital within one 

day of being admitted. 

Dr. Michael Nicholas, a clinical neuropsychologist, has treated Ms. Smith 

for ongoing neurological injuries. Dr. Nicholas testified that Ms. Smith first 

sought treatment in August 2014 for problems with attention, concentration, 

memory, slurred speech, and amnesia. Dr. Nicholas diagnosed Ms. Smith with 

a traumatic brain injury and continued to treat her at the time of trial, 15 

months after the assault. 

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Ms. Smith testified that her eye socket was "blown;" her cheek and jaw 

were broken; her C-4 and C-5 vertebra were compressed, causing numbness in 

her arms; and, because of pioblems with her vision, she had to have surgery 

on her eyes. Ms. Smith admitted that her eyesight had improved following 

surgery; however, she stated that ongoing symptoms made it impossible for her 

to read and drive. Furthermore, Ms. Smith testified that she' had not been able 

to return to work as a result of the assault and that she expected to continue 

receiving treatment for her ongoing symptoms. 

Pennington did not call any witnesses, and he chose not to testify. The 

defense tendered a second-degree assault jury instruction under the theory 

that Ms. Smith had only suffered "physical injury" as opposed to "serious 

physical injury" as called for under first-degree assault. The Commonwealth 

objected, and, after hearing arguments from the parties, the trial court did not 

include the proposed second-degree assault instruction, finding there was not 

sufficient evidence in the record to support that instruction. 

The jury found Pennington guilty of first-degree assault, and Pennington 

appealed to this Court pursuant to section 110(2)(b) of the Kentucky 

Constitution. 

H. STANDARD OF REVIEW. 

We review a trial court's ruling on the exclusion of a lesser included 

offense instruction for abuse of discretion. Ratliff v. Commonwealth, 194 

S.W.3d 258, 274 (Ky. 2006), as modified (July 28, 2006). "The test for abuse of 

discretion is whether the trial judge's decision was arbitrary, unreasonable, 

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unfair, or unsupported by sound legal principles." Commonwealth v. English, 

993 S.W.2d 941, 945 (Ky. 1999). 

III. ANALYSIS. 

Pennington argues that he was denied due process when the trial court 

refused to instruct the jury on the lesser included offense of second-degree 

assault as set forth in Kentucky Revised Statute (KRS) 508.020. 

"It shall be the duty of the court to instruct the jury in writing on the 

law of the case[.]" Rule of Criminal Procedure (RCr) 9.54(1). Implicit in this 

rule, the instructions must be "complete and the defendant has a right to have 

every issue of fact raised by the evidence and material to his defense submitted 

to the jury on proper instructions." Hayes v. Commonwealth, 870 S.W.2d 786, 

788 (Ky.1993). "A defendant is entitled to an instruction on any lawful defense 

which he has. Although a lesser included offense is not a defense within the 

technical meaning of those terms as used in the penal code, it is, in fact and 

principle, a defense against the higher charge." Slaven v. Commonwealth, 962 

S.W.2d 845, 856 (Ky. 1997). "[A]n instruction on a lesser included offense is 

required if the evidence would permit the jury to rationally find the defendant 

not guilty of the primary offense, but guilty of the lesser offense." Thomas v. 

Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005). However, a trial court has no 

duty to instruct on a theory not supported by the evidence. Payne v. 

Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983). 

At issue in this case is the degree of injury Ms. Smith suffered as a result 

of Pennington's assault. In pertinent part, a person is guilty of first-degree 

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assault when he causes "serious physical injury," whereas he is guilty of 

second-degree assault when he causes "physical injury." KRS 508.010(1)(a); 

KRS508.020(1)(b). Therefore, the question is whether the evidence would have 

permitted the jury to rationally find that Ms. Smith suffered only a "physical 

injury," rather than a "serious physical injury." KRS 500.080(15) defines 

"serious physical injury" as "physical injury which creates a substantial risk of 

death, or which causes serious and prolonged disfigurement, prolonged 

impairment of health, or prolonged loss or impairment of the function of any 

bodily organ[.]" "Physical injury" requires only "substantial physical pain or 

any impairment of physical condition[.]" KRS 500.080(13). 

In Parson v. Commonwealth, 144 S.W.3d 775, 787 (Ky. 2004), we held a 

"prolonged impairment of health" occurred when a victim suffered from 

headaches, ongoing neck pain, lack of range of motion caused by muscle 

spasms, upper back pain, and arm numbness of five months' duration. 

Likewise in Clift v. Commonwealth, 105 S.W.3d 467, 470-472 (Ky. App. 2003), 

the Court of Appeals held that a reasonable juror could find that an 11-monthold suffered a "prolonged impairment of health" or a "prolonged loss or 

impairment of the function of [a] bodily organ" when he lost use of his arm for 

four weeks due to a broken humerus. 

Applying those standards to the evidence in the record, we are convinced 

that the trial court did not abuse its discretion because a rational jury could 

only have found that Ms. Smith suffered "serious physical injury" as a result of 

Pennington's assault. As noted above, Dr. Nicholas testified that he diagnosed 

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Ms. Smith with a traumatic brain injury after she presented with problems 

with attention, concentration, memory, slurred speech, and amnesia. 

Furthermore, he had treated Ms. Smith for nearly a year and continued to do 

so at the time of trial. Ms. Smith testified that her C-4 and C-5 vertebra were 

compressed causing ongoing numbness in her arms, a condition that would 

require treatment in the future. Dr. Haughn testified that Ms. Smith suffered a 

significant orbital fracture, and Ms. Smith testified that, despite having 

undergone surgery, her eyesight had not fully returned, leaving her unable to 

drive or read. Such symptoms and diagnoses are more than sufficient to 

establish a prolonged impairment of health and a prolonged impairment of the 

functioning of several bodily organs, i.e. the brain and the nervous and visual 

systems. Thus, the evidence clearly established that Ms. Smith suffered a 

"serious physical injury," and no jury could have rationally concluded that Ms. 

Smith suffered only a "physical injury." 

Pennington also argues that the trial court usurped the role of the jury 

by weighing the evidence to determine if a second-degree assault instruction 

was warranted. For support, Pennington argues that Ms. Smith's testimony as 

to her injuries, which the trial court relied on, was not credible. He notes that 

Ms. Smith testified that she was pursuing a civil lawsuit against Kentucky 

State Penitentiary, which provided an incentive for her to exaggerate her 

injuries. 

We agree that witness credibility is within the province of the jury. 

Ratliff, 194 S.W.3d at 269. However, in addition to Ms. Smith's testimony, the 

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Commonwealth presented unrefuted testimony from the paramedic who first 

treated Ms. Smith and from her treating physicians detailing the severity and 

prolonged nature of her injuries. Thus, even if we believed that Ms. Smith's 

testimony lacked credibility, there was overwhelming medical evidence that she 

suffered serious physical injuries. Furthermore, Pennington presented no 

medical evidence to the contrary and has not pointed to any medical evidence 

to support his contention that Ms. Smith suffered only physical injuries. 

Accordingly, the trial court did not abuse its discretion in refusing to instruct 

the jury on second-degree assault because such an instruction was not 

supported by the evidence. 

IV. CONCLUSION. 

For the reasons stated above, Pennington's conviction is affirmed. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Molly Mattingly 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Andy Beshear 

Attorney General of Kentucky 

Thomas Allen Van De Rostyne 

Assistant Attorney General 

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