RENDERED: APRIL 30, 2020

TO BE PUBLISHED

2019-SC-000113-MR

NATHANIEL L. BREAZEALE APPELLANT

ON APPEAL FROM TRIGG CIRCUIT COURT

V. HONORABLE CLARENCE A. WOODALL, III, JUDGE

NO. 17-CR-00039

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING

Nathaniel Breazeale was convicted of one count of first-degree assault

and one count of first-degree criminal abuse. He was thereafter sentenced to

thirty years and now appeals his convictions to this Court. After review, we

affirm.

I. FACTUAL BACKGROUND

Breazeale began living with his girlfriend Samantha 1 in late December

2016. Samantha ’ s then-one-year-old son Charlie, who is not Breazeale ’ s

biological child, is the victim in this case.

During March of 2017 when the crimes in this case occurred, both

Breazeale and Samantha worked during the day. Normally, Samantha ’ s sister

would babysit Charlie while she and Breazeale were at work. However, on

March 14 th Breazeale called in sick from work. Both he and Charlie had strep

1 Because of the nature of the facts in this case, those involved will be referred

to by pseudonym.throat, and both were vomiting frequently. Therefore, Breazeale babysat

Charlie that day while Samantha was at work.

Samantha testified she left for work early that morning, and there was

nothing wrong with Charlie when she left. There was uncontroverted evidence,

including Breazeale ’ s own statement to police, that Breazeale was the only

person in the home with Charlie that day. When Samantha arrived home at

4:30 that evening, Breazeale and Charlie were asleep on the couch. Rather

than waking them she made herself some food and watched a movie. About

two hours later she decided to take Charlie with her to bed. When she picked

him up, she noticed a bruise over his eye. She woke Breazeale and asked what

happened. He told her that Charlie slipped in his footie pajamas on the tile

floor in the home and hit his head. Apparently satisfied with this answer,

Samantha continued getting herself and Charlie ready for bed. She felt

through his clothes to see if Charlie ’ s diaper was wet, it was not. So Samantha

put Charlie in the pack-n-play he slept in. Samantha, Charlie, and Breazeale

then slept through the night,

Samantha woke up for work at 6:15 the next morning but decided to call

in sick. She believed she was also coming down with strep throat. Breazeale

called in sick again as well, and they went back to sleep. Around 9 am

Samantha heard Charlie moving around in his pack-n-play, so she got him out

to change his diaper. When she removed Charlie ’ s clothing, she saw bruises all

over his body. When asked what happened, Breazeale said while he was

babysitting the day before he was holding Charlie in one arm and his pack-nplay in the other while trying to move the pack-n-play from the master

bedroom to the living room. He told her he tripped and landed on Charlie inthe process. Breazeale would later tell police the same story but said that he

held Charlie out to the side when he fell and did not land on him.

Samantha stated that she wanted to take Charlie to the hospital as soon

as Breazeale told her this. Breazeale would not allow it, as he believed he

would be arrested for child abuse if they took Charlie to the hospital.

Samantha said he took the keys to the only vehicle at the home and her cell

phone, and they argued about going to the hospital for about fifteen minutes.

Eventually Breazeale threw her phone at her and left.

Samantha then called her mother instead of 911

. 2 Samantha ’ s mother

picked Samantha and Charlie up and took them to her home about a mile

away. Almost immediately after they arrived Charlie began spitting up blood.

They then took him to the Trigg County Hospital Emergency Room.

Dr. Jefferey Frederick was the ER doctor that treated Charlie. Dr.

Frederick quickly realized Charlie had life-threatening injuries, and after a CT

scan revealed bleeding in Charlie ’ s abdomen, Dr. Frederick had Charlie flown

to Kosair Children's Hospital 3 in Louisville (Kosair Hospital).

Dr. Melissa Currie, a Child Abuse Specialist and Medical Director in

Chief of the Division of Child Maltreatment at the University of Louisville,

testified regarding Charlie ’ s injuries. Charlie had bruises on his face, on the

front of his body from his neck to his genitals, and up and down his back. He

did not have a normal level of awareness and had to be given fluids and blood

to keep his blood levels up. A CT scan conducted at Kosair Hospital showed

2 Charges were also filed against Samantha due to her conduct in this case.

She testified that she did not realize the extent of Charlie ’ s injuries at that time.

3 Now Norton Children ’ s Hospital.that Charlie ’ s pancreas was broken into two pieces, and that he also had a

serious injury to his duodenum. 4

Charlie was immediately taken to surgery. During surgery they found

that Charlie had about 10 ounces of blood in his abdomen, which Dr. Currie

testified was a lot for a baby his size. The surgeon had to remove the portion of

his pancreas that was separated. Charlie ’ s duodenum also had to be removed

because its tissue was dying due to lack of blood flow. There were several tears

in Charlie ’ s mesentery 5 that also had to be repaired.

After surgery, Charlie ’ s organs were so swollen that not all of his organs

would go back in his abdomen. They therefore had to use a “ silo ” device for

three days to house his organs outside of his body until they could safely be

put back in his abdomen. After they closed his stomach, they conducted an xray which revealed Charlie had a broken tibia. 6 An MRI showed he had a

vertebral compression fracture, meaning that one of the bodies of his vertebra

was crushed. 7 Charlie was hospitalized for twelve days, eight of which were in

the intensive care unit. He had a breathing tube and was placed on a

ventilator. Dr. Currie testified that Charlie ’ s injuries were consistent with an

intrusion injury: a stomp, kick, or punch to his stomach. Based on the

number of bruises, which were described as “ innumerable, ” he was struck

multiple times. Although Charlie has thankfully, if not miraculously, recovered

from his injuries, his survival at that time was “ not a given ” according to Dr.

Currie.

4 The first section of the small intestine located directly in front of the pancreas.

5 The organ that carries blood vessels to the intestines.

6 Shin bone.

7 This injury could not be dated.During the trial Breazeale ’ s defense suggested that Samantha caused

Charlie ’ s injuries after Breazeale left the home the morning of the fifteenth.

Alternatively, the defense asserted that Breazeale inflicted Charlie ’ s injuries

unintentionally; that the injuries occurred when Breazeale patted Charlie on

the back throughout the day so that he would not choke on his own vomit.

Breazeale was convicted of first-degree assault and first-degree criminal

abuse. He now appeals his resulting thirty-year sentence to this Court.

II. ANALYSIS

Breazeale asserts several alleged errors to this Court. First, that his

convictions for first-degree assault and first-degree criminal abuse violated his

rights against being subjected to double jeopardy. Second, that the jury

instruction on first-degree criminal abuse violated his right to a unanimous

verdict. Third, that the trial court failed to instruct the jury on the “ use of force

by a person with the responsibility for care, discipline, or safety of others ”

(justifiable force). Fourth, that the trial court erred by allowing prior bad acts

evidence. Finally, he alleges that the trial court erred by admitting two

photographs.

A. BREAZEALE ’ S CONVICTIONS DID NOT VIOLATE HIS RIGHTS AGAINST

DOUBLE JEOPARDY

Breazeale ’ s first argument is that his convictions for both first-degree

assault and first-degree criminal abuse violated his rights against double

jeopardy. 8 Breazeale concedes he failed to preserve this issue, but requests we

review it for palpable error in accordance with RCr 9 10.26:

A palpable error which affects the substantial rights of

a party may be considered by the court on motion for a

8 See U.S. Const, amend. V and KY Const. §13.

9 Kentucky Rules of Criminal Procedure.new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review,

and appropriate relief may be granted upon a

determination that manifest injustice has resulted

from the error.

An error made by a trial court that violates a defendant ’ s rights against double

jeopardy is considered per se manifest injustice, and therefore mandates

reversal. 10

The law of this Commonwealth regarding what constitutes double

jeopardy is well-established. Kentucky follows the Blockburger 11 test to

determine whether a defendant ’ s rights against being subjected to double

jeopardy are violated when that defendant is convicted for more than one

offense arising from the same course of conduct. Specifically, our appellate

courts ask whether a defendant ’ s conviction for each offense “ [required] proof of

an additional fact which the other [did] not. ” 12 Accordingly, if “ the exact same

facts could prove the commission of two separate offenses, then the double

jeopardy clause mandates that while a defendant may be prosecuted under

both offenses, he may be convicted under only one of the statutes. ” 13

In this case, the jury was instructed on both intentional and wanton

first-degree assault. 14 Breazeale was ultimately convicted of intentional firstdegree assault. The instructions for that charge stated:

You will find the Defendant Nathaniel L. Breazeale

guilty of First Degree Assault under this Instruction if,

and only if, you believe from the evidence beyond a

reasonable doubt all of the following:

10 See, e.g., Cardine v. Commonwealth, 283 S.W.3d 641, 652 (Ky. 2009).

11 Blockburger v. United States, 284 U.S. 299 (1932).

12 Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996).

13 Clark v. Commonwealth, 267 S.W.3d 668, 675 (Ky. 2008).

14 See Kentucky Revised Statutes (KRS) 508.010(l)(a) and KRS 508.010(l)(b),

respectively.A. That in this county on or about March 14, 2017,

and before the finding of the Indictment herein,

he caused a serious physical injury to [Charlie]

by punching, stomping or kicking him: AND

B. That in doing so:

(l)(a) The Defendant intended to cause serious

physical injury to [Charlie]; AND

(b) The Defendant ’ s hands or feet were a dangerous instrument as defined under

Instruction 5[.] 15

The jury instruction for first-degree criminal abuse directed:

You will find the Defendant Nathaniel L. Breazeale

guilty of First Degree Criminal Abuse under this

Instruction if, and only if, you believe from the

evidence beyond a reasonable doubt all of the

following:

A. That in this county on or about March 14, 2017,

and before the finding of the Indictment herein,

he intentionally abused [Charlie];

B. That he thereby caused a serious physical injury

to [Charlie]; AND

C. That [Charlie] was at that time twelve years of

age or less.

Therefore, in order for Breazeale to be convicted of first-degree assault

the jury had to find that he intentionally inflicted serious physical injury upon

Charlie with a dangerous instrument. In contrast, the first-degree criminal

abuse instruction required the jury to find that Breazeale intentionally abused

Charlie thereby causing serious physical injury, and Charlie was twelve years

15 Instruction 5 defined “ dangerous instrument ” as “ any instrument, including

parts of the human body when a serious physical injury is a direct result of the use of

that part of the human body, article, or substance which, under the circumstances in

which it is used, attempted to be used, or threatened to be used, is readily capable of

causing death or serious physical injury. ”of age or less at the time of the abuse. Convictions under each of these

instructions clearly required proof that the other did not. The first-degree

assault instruction required a finding that Breazeale used a dangerous

instrument to cause serious physical injury; the criminal abuse instruction

required no such finding. And, the criminal abuse statute required a finding

that the victim was twelve years of age or less when the abuse occurred; the

first-degree assault statute does not have a victim age requirement.

We therefore hold Breazeale ’ s rights against double jeopardy were not

violated by his convictions for intentional first-degree assault and first-degree

criminal abuse. 16 No palpable error occurred.

B. BREAZEALE ’ S RIGHT TO A UNANIMOUS VERDICT WAS NOT

VIOLATED

Breazeale next argues that his right to a unanimous verdict, as

established in Johnson v. Commonwealth, 17 was violated by the first-degree

criminal abuse jury instruction. Specifically, that the instruction does not

specify the conduct that constituted “ abuse. ”

Breazeale concedes that this issue is unpreserved and requests palpable

error review, while the Commonwealth contends that Breazeale invited this

alleged error by tendering an instruction that was substantially similar to the

16 See also Thompson v. Commonwealth, 2017-SC-000169-MR, 2018 WL

2979952, at *3 (Ky. June 14, 2018) (holding defendant ’ s convictions for first-degree

assault and first-degree criminal abuse did not violate double jeopardy because each

conviction required a finding the other did not), and Beasley v. Commonwealth, 2001-

SC-000539-MR, 2003 WL 22974888, at *7 (Ky. Dec. 18, 2003) (holding, although not

raised, the defendant ’ s convictions for first-degree assault and first-degree criminal

abuse would not violate double jeopardy because each conviction required a finding

the other did not).

17 405 S.W.3d 439, 449 (Ky. 2013) (holding “ a general jury verdict based on an

instruction including two or more separate instances of a criminal offense, whether

explicitly stated in the instruction or based on the proof

— violates the requirement of a

unanimous verdict. ” ).instruction ultimately given. 18 While we otherwise agree with the

Commonwealth ’ s argument, we hold that no unanimous verdict error occurred

in accordance with Cox v. Commonwealth. 19

In Cox, the defendant was convicted of murdering his four-month-old

son. 20 The evidence presented at trial suggested that the defendant either

shook or struck the child, or both, resulting in the child ’ s death. 21 The jury

instructions provided:

You will find the Defendant guilty of Murder under this

Instruction if, and only if, you believe from the

evidence beyond a reasonable doubt all of the

following:

A. That...the Defendant, by hitting, shaking or both,

killed [the child]; AND

B. That in so doing:

(1) He caused the death of [the child]

intentionallyf. ] 22

The defendant argued that this instruction violated his right to a unanimous

verdict because it “ failed to require all twelve members of the jury to identify

the specific physical act by [the defendant] that caused [the child ’ s] death. ” 23

This Court disagreed, noting that the instruction at issue was a

combination instruction, i.e. one that “ permit[s] a conviction of the same

18 See Thornton v. Commonwealth, 421 S.W.3d 372, 376 (Ky. 2013) (holding that

the appellant invited any alleged jury instruction error by “ proposing an instruction

that contains the very defect he now opposes. ” ).

19 553 S.W.3d 808 (Ky. 2018).

20 Id. at 810.

21 Id.

22 Id. at 811.

23 Id.offense under either of multiple alternative theories. ” 24 And, that “ [a]

‘ combination ’ instruction permitting a conviction of the same offense under

either of multiple alternative theories does not deprive a defendant of his right

to a unanimous verdict, so long as there is evidence to support a conviction

under either theory. ” 25 This Court ultimately held that the defendant ’ s right to

a unanimous verdict was not violated because

[a] conviction for murder, according to the statute,

does not require the fact-finder to determine the

precise physical act of [the defendant] that was the

actual cause of [the child ’ s] death. All that must be

shown, to satisfy the element of causation under the

statute, is that the defendant did something to cause

the death of the victim...The dispute as to the specific

physical act that [the defendant] performed to cause

the death of the of his son is “ a disagreement about

means ” that “ [does not matter] ” because “ all 12 jurors

unanimously concluded that the [Commonwealth] had

proved the necessary related element, namely, that

“ [the defendant] caused [the child ’ s] death...Because

the ju r y instructions forced the jury to unanimous

agreement that [the defendant] caused [the child ’ s]

death, regardless of the specific means, no unanimity

error occurred because of the inclusion of the phrase

“ hitting, shaking, or both. ” 26

In this case, Breazeale argues against the first-degree criminal abuse

instruction, which directed:

You will find the Defendant Nathaniel L. Breazeale

guilty of First Degree Criminal Abuse under this

Instruction if, and only if, you believe from the

evidence beyond a reasonable doubt all of the

following:

A. That in this county on or about March 14, 2017,

and before the finding of the Indictment herein,

he intentionally abused [Charlie];

24 I d. at 812.

25 Id.

26 Id. at 813.B. That he thereby caused a serious physical injury

to [Charlie]; AND

C. That [Charlie] was at that time twelve years of

age or less.

Breazeale asserts that this instruction violated his right to a unanimous verdict

because it does not specify what conduct constituted intentional abuse. He

argues for example that, based on Dr. Currie ’ s testimony that Charlie ’ s injuries

were consistent with a stomp, kick, or punch to his stomach, some jurors

could have found he abused Charlie by punching him, while others could have

found he injured Charlie by stomping on him.

But, as in Cox, Breazeale ’ s argument is at its core 

### a “ disagreement about

means. ” In order to satisfy the abuse element of the criminal abuse instruction

all twelve jurors had to find that Breazeale intentionally committed some kind

of violent act against Charlie. 27 But the ju r y was not required to find what that

specific act was. Therefore, because there was sufficient evidence to support a

finding under each of the alternate theories, i.e. stomping, kicking, or

punching, no unanimous verdict error occurred.

C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY FAILING

TO INSTRUCT THE JURY ON JUSTIFIABLE FORCE

Breazeale further contends that the trial court erred by failing to instruct

the jury on justifiable force under KRS 503.110. 28 This Court reviews a trial

court ’ s ruling regarding jury instructions for abuse of discretion. 29 A trial court

27 See KRS 508.090.

28 This alleged error was properly preserved by Breazeale ’ s tender of an

instruction on justifiable force. RCr 9.54.

29 Ratliff

v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006).abuses its discretion when it acts in a way that is arbitraiy, unreasonable,

unfair, or unsupported by sound legal principles. 30

Breazeale argues, and is correct, that all criminal defendants have a due

process right to present a defense, including jury instructions that give effect to

a defendant ’ s theory of the case. 31 It is precisely because of this due process

right that trial courts have a duty to instruct the juiy on the whole law of the

case. 32 However, that duty “ does not mandate the trial court place before the

jury speculative theories merely because the testimony includes some basis for

the speculation. ” 33 Breazeale requested an instruction on justifiable force, an

affirmative defense. Therefore, in order to be entitled to that instruction,

Breazeale had to present “ some evidence justifying a reasonable inference ” that

the evidence warranted that instruction. 34

The justifiable force statute, KRS 503.110, provides:

(1) The use of physical force by a defendant upon

another person is justifiable when the defendant is

a parent, guardian, or other person entrusted with

the care and supervision of a minor or an

incompetent person or when the defendant is a

teacher or other person entrusted with the care and

supervision of a minor, for a special purpose, and:

(a) The defendant believes that the force used is

necessary to promote the welfare of a minor

or mentally disabled person or, if the

defendant's responsibility for the minor or mentally disabled person is for a special

purpose, to further that special purpose or

maintain reasonable discipline in a school,

class, or other group; and

30 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

31 See, e.g., Webb v. Commonwealth, 904 S.W.2d 226, 228 (Ky. 1995).

32 RCr 9.54(1).

33 Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015).

34 See Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015).(b) The force that is used is not designed to

cause or known to create a substantial risk

of causing death, serious physical injury,

disfigurement, extreme pain, or extreme

mental distress. 35

Part of Breazeale ’ s defense was that any injury he caused to Charlie

occurred when, throughout the day, he hit Charlie on the back to dislodge

vomit he was choking on. He presented no evidence to support that doing so

could cause the injuries Charlie sustained.

In contrast, in addition to evidence of Charlie ’ s extensive, potentially fatal

injuries discussed in the “ factual background ” section of this Opinion, Drs.

Frederich and Currie both testified that Charlie ’ s injuries were not consistent

with accidental injury. Further, Dr. Currie attested that part of her job is to

investigate suspicious injuries to children and determine whether the injuries

are the result of child abuse. She testified that in her expert opinion, not only

were Charlie ’ s injuries not consistent with accidental injury, but they were in

fact “ diagnostic of inflicted child abuse. ” She explained that “ diagnostic ”

means the highest level of certainty that child abuse was committed; it means

she is sure that there is no other reasonable explanation. The compression

fracture to Charlie ’ s vertebra and his abdominal injuries in particular were the

result of “ a lot of violent force. ” Further, she said his injuries were more severe

than those typically sustained when a child is ejected from a vehicle during a

car accident.

Consideration of the foregoing simply does not allow a reasonable

inference that the force used by Breazeale on Charlie was not “ designed to

cause or known to create a substantial risk of causing death, serious physical

35 (emphasis added).injury, disfigurement, extreme pain, or extreme mental distress. ” Charlie ’ s

injuries simply could not have been the result of the force Breazeale claimed to

use to prevent Charlie from aspirating his own vomit. Accordingly, we hold

that the trial court did not abuse its discretion in denying Breazeale an

instruction on justifiable force.

D. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING

EVIDENCE OF BREAZEALE ’ S PRIOR BAD ACTS

Breazeale next argues that the trial court erred by allowing testimony

regarding two separate incidents, both of which he asserts constituted prior

bad acts not otherwise admissible under KRE 36 404. We will address each in

turn.

i. The January Incident

Breazeale argues that it was error to admit evidence that concerned Charlie

allegedly being injured by Breazeale roughly two months before the offense in

this case. 37 We review a trial court ’ s ruling on the admission of evidence for

abuse of discretion. 38 A trial court abuses its discretion when it rules in a

way that is arbitrary, unreasonable, unfair, or unsupported by sound legal

principles. 39

Samantha testified that from the end of December 2016 until midFebrua r y 2017 Breazeale was unemployed and would babysit Charlie for her

during the day while she was at work. On January 4, 2017, Breazeale brought

Charlie to Samantha ’ s workplace to show her a bruise on Charlie ’ s face.

36 Kentucky Rules of Evidence.

37 This alleged error was properly preserved by the defense ’ s pre-trial objection

to the evidence being introduced. RCr 9.22.

38 Holt v. Commonwealth, 250 S.W.3d 647, 652 (Ky. 2008).

39 English, 993 S.W.2d at 945.Breazeale said Charlie hit his head on the ceiling fan, but his stories were

inconsistent as to exactly how he hit his head. 40 After this incident, Samantha

and her mother put what Samantha called a “ safety plan ” in place: Samantha

allowed Breazeale to continue babysitting Charlie, but Samantha ’ s mother

would check Charlie for bruises every day after work. This safety plan

continued until Breazeale got a job and Samantha ’ s sister began babysitting.

Child protective services were never involved.

Breazeale contends that the trial court abused its discretion by allowing

this evidence because it violates KRE 404(a) ’ s prohibition against the

admission of a defendant ’ s prior bad act to prove conformity therewith. He

further asserts that the evidence was not relevant for any purpose other than

showing his criminal disposition and had little probative value, and therefore

violated KRE 403 as well. We disagree.

In the trial court ’ s pre-trial order allowing the admission of this evidence

the trial court found that the proffered testimony was relevant to proving

Breazeale ’ s intent and the absence of accident. It also found that the evidence

was sufficiently probative and was not unduly prejudicial.

As previously stated, the Commonwealth cannot introduce evidence of a

defendant ’ s prior bad acts solely to prove conformity therewith. 41 However,

there are a number of exceptions to this rule that permit the Commonwealth to

introduce such evidence for other purposes. Two of those exceptions are

provided in KRE 404(b)(1):

40 Samantha stated that Breazeale told her he “ aggressively picked [Charlie] up

off the bed, ” and he hit his head on the ceiling fan. Breazeale would later tell

investigating officers in this case that he “ playfully threw Charlie up ” and he

accidentally hit the ceiling fan.

41 KRE 404(a).(b)Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show action in conformity therewith. It may,

however, be admissible:

(1) If offered for some other purpose, such

as... intent... or absence of mistake or

accident[.]

Here, the trial court found the evidence at issue was admissible to show that

Breazeale intended to inflict Charlie ’ s injuries, and/or that what happened to

Charlie was not an accident. Both the January incident and the offense in this

case occurred while Charlie was in the sole care of Breazeale. In both

instances Charlie sustained bruises to his face. The incidents occurred within

two months of one another. And in both instances, Breazeale claimed he did

not intentionally hurt Charlie. We therefore hold the trial court did not abuse

its discretion in finding that this evidence was an exception to the rule

prohibiting prior bad acts evidence.

But our analysis does not end there. We must next address whether the

trial court erred by finding the evidence was admissible under a KRE 403

balancing test. In other words, whether the evidence ’ s probative value was

substantially outweighed by its risk of potential undue prejudice.

Again, this evidence was admitted to suggest Breazeale ’ s intent and that

Charlie ’ s injuries were not accidental. Part of Breazeale ’ s defense was that if he

did hurt Charlie it was accidental, and that he did not intend to hurt him.

Therefore, evidence of the prior incident was highly probative to a key issue the

jury was tasked with deciding: whether Breazeale intentionally hurt Charlie.

Next we ask whether the evidence ’ s high probative value is substantially

outweighed by potential undue prejudice. Evidence that is unduly prejudicial

is that which “ appeals to the jury ’ s sympathies, arouses its sense of horror,provokes its instinct to punish, or otherwise may cause a jury to base its

decision on something other than the established propositions in the case. ” 42

Here, the essence of the testimony was that Charlie got bruises on his head

while in Breazeale ’ s care and Samantha and her mother believed Breazeale

may have purposely hurt Charlie. In addition, a picture of Charlie from that

day was entered into evidence. It shows at least four bruises on the right side

of Charlie ’ s face that are relatively minor.

Obviously, any allegation that a defendant has harmed a child will have

some prejudicial effect. But based on the foregoing we cannot hold that the

trial court abused its discretion by finding that the high probative value of this

evidence was substantially outweighed by its risk of undue prejudice. Further,

the jury was properly admonished that they were to consider the evidence, if at

all, as evidence of Breazeale ’ s intent, or his lack of mistake or accident. Juries

are presumed to follow a trial court ’ s admonitions, and Breazeale has offered

no evidence to rebut that presumption. 43 This is particularly true when

considering the other overwhelming evidence of his guilt.

ii. Evidence of Healing Injuries

Breazeale also argues that the trial court erred by allowing Drs. Frederick

and Currie to testily that Charlie had old, healing rib fractures. From review of

the record, it is clear that the defense itself solicited this information as part of

its trial strategy.

The Commonwealth called Dr. Frederick as a witness prior to calling Dr.

Currie. On direct examination, the Commonwealth did not ask Dr. Frederick

42 Richmond v. Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017).

43 See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).any questions regarding Charlie having old, healing fractures. The defense, on

the other hand, asked the following during Dr. Frederick ’ s cross-examination:

Defense: The other radiological reports are from other

areas of [Charlie ’ s] body: his head, his limbs, things of

that sort. And you did not observe in those any

broken bones?

Dr. Frederick: There were old, healing fractures.

Defense: You ’ re not able to date those fractures, are you?

Dr. Frederick: No.

Defense: And you can ’ t say who actually caused these

injuries can you?

Dr. Frederick: No.

Then, during Dr. Currie ’ s subsequent direct examination, she referenced

Charlie ’ s healing rib fractures at least three times throughout her testimony.

The defense did not object to her statements or ask for an admonition. Then,

during Dr. Currie ’ s cross-examination, the defense asked her how old the

healing fractures were. She said they were likely at least two weeks old.

The defense is now objecting to the very evidence that it solicited. “ In the

absence of exceptional circumstances, a defendant is bound by the trial

strategy adopted by his counsel[.] ” 44 Accordingly, we hold that the trial court

did not err by allowing evidence that Charlie had old, healing rib fractures into

evidence.

44 Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977).E. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING

PHOTOGRAPHIC EVIDENCE

Breazeale ’ s final argument is that the trial court erred by allowing two

photographs into evidence. 45 We review a trial court ’ s ruling on the admission

of evidence for abuse of discretion. 46 A trial court abuses its discretion when it

rules in a way that is arbitrary, unreasonable, unfair, or unsupported by sound

legal principles. 47 We will address the admission of each photograph in turn.

i. The January Incident

As previously noted, a photograph of Charlie was entered from the day he

sustained bruises to his face while in Breazeale ’ s care two months prior to the

offense in this case. The defense objected and asserted that it was not relative

to the crime Breazeale was being tried for. The trial court overruled the

objection and admonished the jury that the photograph could only be

considered as evidence of Breazeale ’ s intent, or his lack of mistake or accident.

For the same reasons provided in the previous section of this opinion,

this evidence was relevant and highly probative. Further, its probative value

was not substantially outweighed by its risk of potential undue prejudice.

Therefore, the trial court did not abuse its discretion by allowing it into

evidence.

ii. The Silo Photograph

Breazeale also argues the trial court erred by allowing a photograph of

Charlie after his first abdomen surgery into evidence. The photograph depicts

Charlie, post-surgery, with the silo placed on his abdomen, temporarily

45 This issue was preserved regarding both photographs by contemporaneous

objection to their admission. RCr 9.22.

46 Holt, 250 S.W.3d at 652.

4 7 English, 993 S.W.2d at 945.housing Charlie ’ s organs on the outside of his body. Breazeale argues that this

photograph was not relevant and should not have been admitted due to its

gruesomeness under Hall v. Commonwealth. 48

In Hall, this Court reinforced the rule that all evidence, including

gruesome photographs, must first pass a KRE 403 balancing test. 49 As stated,

this means that the evidence ’ s probative value is not substantially outweighed

by its risk of potential prejudice.

Dr. Currie testified that Charlie ’ s organs were so swollen following his

surgery that his treating physicians were not able to put them back into his

abdominal cavity. This prompted their need to use the silo to house his organs

until the swelling subsided. The fact that Charlie ’ s organs became so swollen

demonstrated how much force was used against him when his injuries were

inflicted. Breazeale ’ s assertion was that he accidently inflicted Charlie ’ s

injuries, but it is likely impossible that the kind of injuries Charlie sustained

were the result of accidental force as Charlie described.

Further, in order to carry its burden of proof on both the first-degree

assault charge and the first-degree criminal abuse charge, the Commonwealth

had to prove that Charlie sustained a serious physical injury. 50 Serious

physical inju r

y means “ 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. ” 51 And, for children under the age of twelve, serious physical

48 468 S.W.3d 814 (Ky. 2015).

49 Id. at 823.

50 See KRS 508.0 10(l)(a) and KRS 508.100(l)(a).

51 KRS 500.080(15).injury includes abdominal injuries that indicate internal organ damage, 52 and

any injury requiring surgery. 53 Based on the foregoing, the photograph of

Charlie and with the post-surgical silo had a high probative value.

As for the risk of undue prejudice, Breazeale asserts that the

photograph ’ s gruesomeness renders it so under Hall, supra. It would be

disingenuous of this Court to claim that the photograph is not uncomfortable

to view. However, it is clearly distinguishable from the photographic evidence

at issue in Hall.

To begin, in Hall, twenty-eight offending photographs were at issue,

many of which were needlessly cumulative. 54 Here only one photograph that

showed the use of the silo was admitted. In addition, the photographs in Hall

depicted the scene of a double murder wherein the perpetrator used a high

caliber rifle at close range, along with the victims ’ autopsy photographs. 55 The

photographs in Hall were so jarring that this Court described them as being in

the “ upper echelon of gruesome photos. ” 56 Here, the complained of picture

shows a living child, post-surgery, who ultimately survived. Accordingly, the

singular silo photograph did not reach to the level of gruesomeness of the

photographs in Hall.

We therefore hold that the trial court did not abuse its discretion by

admitting the post-surgical photograph of Charlie and the attached silo.

52 KRS 500.080(15) (m).

53 KRS 500.080(15)(n).

54 Hall, 468 S.W.3d at 820.

55 Id. at 820-22.

56 Id. at 826.III. CONCLUSION

Finding no reversible error, we affirm.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Shannon Renee Dupree

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General