RENDERED: SEPTEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2022

- CA

- 0982

- MR

RANDY ROGER S APPELLANT

APPEAL FROM LOGAN CIRCUIT COURT v. HONORABLE JOE W

. HENDRICKS, JR. , JUDGE ACTION NO. 21

- CR

- 00348

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: COMBS, DIXON, AND ECKERLE , JUDGES

. ECKERLE , JUDGE: Appellant, Randy Rogers (Appellant) entered a n unconditional , guilty plea to multiple crimes. The Trial Court sentenced him according to the terms of the plea agreement. He appeals as a matter of right , raising an unpreserved allegation of double jeopardy. For the reasons announced below , we affirm.- 2

- BACKGROUND The facts of the case are not readily developed because Rogers waived his constitutional rig ht to a jury trial and entered an unconditional guilty plea. What can be pieced together from the sparse record is a bizarre series of violent and potentially deadly a ctions committed in succession on July 16, 2021

. It appears that Rogers, while intoxica ted and carrying a machete, first entered a residence and held the machete to a woman’s throat. She pushed Rogers and the machete away, and Rogers left. Rogers returned moments later ; this time he armed himself with a smaller knife and forcibly entered t he residence . He pointed the knife at a man in the residence and asked if the man wanted to die. Rogers then went outside and , now sporting brass knuckles, he punched a third victim multiple times, resulting in no visible injuries. Police were dispatched. When the police officers arrived , Rogers fled in a motor vehicle , and police pursued him until he wrecked his car. A subsequent , breath test revealed a bloo d alcohol content of 0.134, well above the legal limit for motor vehicle operation. The Logan County Grand Jury subsequently indicted Rogers for 21 crimes: two counts of burglary, first degree; two counts of assault, fourth degree; five counts of wanton endangerment, first degree; one count of disorderly conduct,
second degree; one count of fleeing or evading police, first degree; four counts of disregarding stop sign; two counts of disregarding traffic control device, traffic- 3

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light; one count of reckless driving; one count of improper passing; one count of operating motor vehicle under the influence of alcohol, first offense; and one count of being a first

- degree persistent felony offender.

Rogers subsequently accepted the Commonwealth’s offer on a plea of guilty. Pursuant to the terms of the unconditional plea agreement, Rogers would receive a total sentence of imprisonment f or 17 years, 12 of which would be subject to 85% parole eligibility , and five of which would be subject to 20% parole eligibility. Pursuant to the agreement, Rogers entered guilty pleas to the following charges : two counts of burglary, first degree; two counts of assault, fourth degree; five counts of wanton endangerment, first degree; one cou nt of disorderly conduct,

sec ond degree; one count of fleeing or evading police, first degree; and one count of operating a motor vehicle under influence of alcohol, first offense . The remaining charges, including the first

- degree persistent felony offender charge, were dismissed by agreement.

During sentencing, Rogers gave summary details about the crimes he committed against the man and woman in the residence, but he gave no additional guidance about the victim of the attack with brass knuckl es. The Trial Court accepted the guilty pleas and sentenced Rogers in accordance with the agreement. Rogers then timely appealed the unconditional plea.- 4

- ANALYSIS Rogers raises one claim on appeal, relating solely to charges stemming from the fight with brass knuckles. He admits his sole issue on appeal is not preserved. He alleges that one of his assault, fourth degree charges should be dismissed as it violates the constitutional and statutory proscriptions against double jeopardy when combined with one of the wanton endangerment, first degree

counts. Rogers claims that convictions for both charges require inconsistent findings of fact, as Rogers believes the facts show there was no injury to the victim. The specific indictments underlying this alle ged error read as follows:
COUNT 6 That on or about July 16, 2021, in Logan County, Kentucky, the above

- named Defendant committed the offense of Wanton Endangerment, 1 st Degree, when under circumstances manifesting extreme indifference to the value of human life, he wantonly engaged in conduct which created a substantial danger of death or serious physical injury to David Taylor, while intoxicated, he physically assaulted Taylor while wearing brass knuckles.

. . . .

COUNT 8 That on or about July 16, 2021, in Logan County, Kentucky, the above

- named Defendant, committed the- 5

- offense of Assault, 4 th Degree, No Visible Injury, when he intentionally struck David Taylor in the head. Rogers avers that these charges stemmed from the following allegations in the Uniform Citation, “ A third victim was allegedly struck outside of the residence by the suspect multiple times with a set of brass knuckles which caused no known injury t o this particular victim.”

We briefly address preservation. Rogers claim s both constitutional and statutory proscriptions against double jeopardy were violated. Provided there was no express waiver of the constitutional proscriptions against double je opardy in exchange for some benefit , the constitutional claim may be raised even absent preservation below. See Kiper v. Commonwealth , 399 S.W.3d 736, 740 (Ky. 2012) , and Henry v. Commonwealth , 275 S.W.3d 194, 202 (Ky. 2008) , overruled on other grounds by Rose v. Commonwealth , 322 S.W.3d 76 (Ky. 2010 ). The statutory pro hibitio n against double jeopardy , though, can only be reviewed under the palpable error rule of RCr 1 10.26, as it w as not raised below. Kiper , supra . Unde r the palpable error standard “ reversal is warranted if a manifest injustice has resulted from the error, which requires a showing of the probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due

1 Kentucky Rules of Criminal Procedure.- 6

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process of l aw.” McGuire v. Commonwealth , 368 S.W.3d 100, 112 (Ky. 2012) ( internal quotation mark s and citations omitted).

Regarding the constitutional claims, Rogers’ claims are meritless. It is not double jeopardy to be convicted of fourth

- degree assault and first

- degree

w anton endangerment, as each offense requires proof of an element that the other
does not. Matthews v. Commonwealth , 44 S.W.3d 361, 365 (Ky. 2001) (citing Commonwealth v. Burge , 947 S.W.2d 805, 811 (Ky. 1996))

.

Regarding the statutory claim, Rogers argues convictions for both charges violated the statutory proscription against double jeopardy , namely inconsistent factual findings. This argument is made pursuant to KRS 2
505.020 (1)(b)

. 3 Specifically, Rogers claims tha t the Commonwealth was required to prove that no physical injury occurred with the wanton endangerment charge and that physical injury did result from the assault charge. And , Rogers claims , the

2 Kentucky Revised Statutes.

3 That statute provides: (1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:

. . . (b) Inconsistent fi ndings of fact are required to establish the commission of the offenses [.]- 7

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Uniform Citation states “no known injury” occurr ed ; thus, he assumes, no injury occurred

. That assumption ignores the indictment, which states “No Visible Injury” occurred, but not that no injury at all occurred

. To establish physical injury, the Commonwealth need only prove that the victim suffered “substantial physical pain or any impairment of physical condition [.] ” KRS 500.080(13). 4 This definition does not require proof of a visible injury. See, e.g. , Hubbard v. Commonwealth , 932 S.W.2d 381 (Ky. App. 1996) ( pain in a hip sufficient to establish physical injury). Being hit in t he head with brass knuckles could cause a myriad of conditions that result in substantial , physical pain or impairment of physical condition with no visible injuries ; concussions , headaches , and impairments to vision are just three possibilities. The reco rd here is not clear enough to rule out any of these conclusion s without additional , fact finding. Henry , 275 S.W.3d at 202 (“ [W] here, as here, the double jeopardy violation is clear from the record without the need for additional fact finding, a guil ty plea does not preclude subsequent relief.”)

.

Likewise, the record supports th e claim that at least one of the “multiple” punches could have resulted in no physical injury , thus supporting the

4 This definition of “physical injury” was renumbered to KRS 500.080(16) subsequent to the commission of Rogers’ crimes.- 8

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wanton endangerment charge

. A n intoxicated person wantonly flailing a brass

knuckle

- clad fist at a nother person can constitute circumstances manifesting an
extreme indifference to human life and create a substantial danger of death or serious , physical injury to the recipient of said brass

- clad fi st, regardless of whether the blow results in any physical injury.

Accordingly, the record is not clear enough without additional , factual findings to establis h a statutory double jeopardy violation

. In fact, q uite the opposite is true: t he indictment , when read in concert with the Uniform Citation , supports separate and consistent findings of fact that would establish the
commission of both offenses. Moreover, Rogers waived any right to additional, fact findings by entering an unconditional, guilty plea

. Thus, w e find no KRS 505.020(1)(b) double jeopardy violation that is palpable . There being no violation of Rogers’ state and federal constitutional protections against double jeopardy, and no palpable violation of Rogers’ statutory double jeopardy protection, we AFFIRM the judgment and sentence.

ALL CONCUR.- 9

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BRIEF S FOR APPELLANT: Robert C. Yang F rankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Christopher Henry Assistant Attorney General Frankfort, Kentucky