NOT TO BE PUBLISHED
OPINION
TAYLOR, Judge.
Rita Mitchell brings this appeal from an October 19, 2011, judgment of conviction upon a jury verdict of the Monroe Circuit Court to first-degree assault and second-degree criminal abuse. We affirm in part, reverse in part, and remand.
Rita Mitchell and Donna Bartley were indicted in 2010 on charges stemming from the neglect and abuse of Bartley's disabled adult child, K.B.1 Mitchell was charged with first-degree assault and second-degree criminal abuse, and Bartley was charged with first-degree assault and first-degree abuse.
Mitchell and Bartley's cases consolidated for trial. The jury found Mitchell guilty of first-degree assault and second-degree criminal abuse. The jury found K.B.'s mother, Bartley, guilty of first-degree assault and first-degree criminal abuse. By judgment entered October 19, 2011, Mitchell was sentenced to twelve-years' imprisonment on first-degree assault and five-years' imprisonment for second-degree criminal assault to run consecutively for a total of seventeen-years' imprisonment. The circuit court sentenced Bartley to twenty-years' imprisonment for first-degree assault and ten-years' imprisonment for first-degree criminal abuse to run consecutively for a total of thirty-years' imprisonment.
Bartley directly appealed her conviction to the Kentucky Supreme Court. In Bartley v. Commonwealth, 400 S.W.3d 714 (Ky. 2013), our Supreme Court affirmed the judgment of conviction against Bartley and summarized the evidence introduced at the consolidated trial:
[F]or several years prior to the spring of 2010, Bartley, Mitchell, and Bartley's three children lived together in Bartley's mobile home on Mudlick Flippin Road in Tompkinsville. Mitchell, a recipient of social security disability income benefits, testified that in exchange for her food and lodging she helped care for Bartley's children and the home and allowed Bartley to take control of her social security checks. In particular, she helped care for K.B., Bartley's eldest child, who, as a result of cerebral palsy, mental retardation, and possibly autism, is severely disabled.
In the late spring or early summer of 2010, Bartley and her two younger children, teenagers at the time, moved from the Tompkinsville mobile home to a new home in Glasgow. Mitchell (who herself suffers from chronic obstructive pulmonary disease and depression) and the then twenty-four year old K.B. remained in Tompkinsville. The plan, apparently, was to have the mobile home moved to Glasgow near to where the others were living, but for whatever reason that move did not occur. Instead, Bartley increasingly disassociated herself from her son and Mitchell and from their circumstances. Although she remained in control of the purse strings, including Mitchell's and K.B.'s social security benefits, she ceased to make the mortgage payments on the mobile home; ceased to provide for trash removal; ceased to pay for water service, which in August 2010 was discontinued; and visited the mobile home only on weekends, delivering food and a few gallons of water. Bartley apparently ignored the deplorable and worsening conditions in which her son and Mitchell were living.
Matters came to a head in October 2010. By then the mortgagee bank was contemplating foreclosure on the mobile home. A bank representative sent to inspect the property found his attempts thwarted by a large number of stray dogs gathered in the yard. Concerned by the dogs, by a bad smell pervading the area (perceptible as far as 100 feet from the door), and by statements from neighbors that a boy was being kept inside the premises, the inspector reported the situation to the Monroe County Sheriff's office. Soon thereafter, a deputy sheriff, assisted by a social worker from the local Cabinet for Family and Health Services office, entered the home with Mitchell's consent. They immediately encountered an almost unbearable stench, arising, at least in part, from the numerous dogs milling about and their excrement, which had been allowed to accumulate on the floors and furniture. Mitchell told them that K.B. was in the home.
The deputy sheriff and social worker then summoned emergency medical assistance, and when the E.M.S. workers arrived, they all proceeded to a back bedroom, locked from the outside, where they found K.B. Photographs they took graphically confirmed that amid heaps of snack wrappers, food scraps, and empty soft drink cans, K.B. was lying naked on a mattress, which was covered with nothing but a sheet of plastic. Through long use, apparently, the center of the mattress had become hollowed out, and in the depression where K.B. was lying was a puddle, inches deep, of his own urine and feces. . . .
Several of the medical personnel who [later] treated K.B. also testified, including the nurses who bathed him and fed him during his two week hospital stay. The nurses described K.B. as having been covered in feces literally from head to toe. They washed it from his hair, from the length of his body, and from his feet. It was caked behind his long fingernails; and it was on his teeth. The foul odor clung to him for many days as did the stain upon his skin. It was also several days before K.B. could resume normal eating. He had arrived at the hospital very hungry, but when the nurses fed him ordinary food, he vomited. Consequently, for several days, he was given baby food while his digestive system recovered.
The physician who treated him testified that K.B.'s digestive problem, apparently the result, in part at least, of a gas blockage in the small bowel, was serious and could have been fatal, had it not been treated. Likewise, K.B.'s contact with his feces, particularly the feces in his mouth, had exposed him to a very serious risk of bacterial, especially E-coli, infection and sepsis, which is potentially fatal.
In addition to having been exposed to those potentially grave conditions, K.B. had also suffered, according to the doctor, a number of lesser, but significant, injuries. His skin had developed bed sores and papules—raised red dots—that K.B. had scratched open. His skin had also sagged and wrinkled due to his extreme weight loss. More seriously, K.B.'s left clavicle had become displaced and his left shoulder had collapsed inward, a result, the doctor believed, of his having lain too long and too uninterruptedly on that side. His muscles had atrophied to the point that he had lost much of his mobility; only months later would he finally regain the ability to walk. He had become deficient in several vitamins, including the fat soluble vitamins A and D. His teeth, too, were severely decayed, and, indeed, all were removed within a year of his release from the hospital. Asked whether K.B.'s condition could have developed in the two weeks immediately prior to his rescue, the doctor explained that it could not have. The shoulder collapse, the muscle atrophy, and the vitamin A and D deficiencies all required several weeks if not months to develop. Months, too, were necessary for the growth of K.B.'s inches-long fingernails and toenails.
Id. at 716-17 (footnotes omitted).
In November 2012, Mitchell filed a motion for belated appeal in the Court of Appeals from the October 19, 2011, judgment, sentencing her to seventeen-years' imprisonment. By order entered May 10, 2013, this Court granted the motion for her belated appeal. This appeal follows.
Mitchell contends that the circuit court committed reversible error by denying her motion for a continuance of her trial. Mitchell argues that a continuance was necessary in order to secure a medical expert for trial preparation and to testify upon her behalf at trial. In particular, Mitchell maintains that a medical expert was required to offer testimony that:
[T]here is a significantly different possible interpretation of the alleged victim's medical condition than that reached by the treating physician and that this would be critical to the Defendant's defense strategy at trial; [ ] it's necessary to obtain a medical expert to thoroughly review the medical records, provide assistance to counsel for trial strategy, and testify at trial[;] and [ ] there are no state facilities known to counsel that could provide such assistance.
. . . .
In addition to the facts laid out in the supplemental motion, defense argued it needed an expert to rebut whether there was actual starvation as opposed to malnutrition, whether the alleged victim was forced to lie in a specific position or whether his condition could be explained by his various other conditions. . . .
Mitchell's Brief at 10-11.
Kentucky Rules of Criminal Procedure (RCr) 9.04 governs a motion for continuance, and this rule provides:
The court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial. A motion by the defendant for a postponement on account of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it. If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true. If the attorney for the Commonwealth consents to the reading of the affidavit on the hearing or trial as the deposition of the absent witness, the hearing or trial shall not be postponed on account of the witness's absence. If the Commonwealth does not consent to the reading of the affidavit, the granting of a continuance is in the sound discretion of the trial judge.
Under RCr 9.04, "[t]he trial court's discretion . . . is very broad, and the denial of a motion for a postponement or continuance does not provide grounds for reversing a conviction `unless that discretion has been plainly abused and manifest injustice has resulted.'" Bartley v. Com., 400 S.W.3d 714, 733 (Ky. 2013) (quoting Hudson v. Com., 202 S.W.3d 17, 22 (Ky. 2006)). The decision to grant a continuance is based upon the totality of the circumstances and the following specific factors:
[L]ength of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice.
Bartley, 400 S.W.3d at 733 (quoting Snodgrass v. Com., 814 S.W.2d 579, 581 (Ky. 1941).2
The record reveals that in April 2011, the circuit court scheduled the jury trial for September 12, 2011. Mitchell filed a motion for continuance on September 2, 2011, and filed an amended motion for continuance on the day of trial, September 12, 2011.
From the outset, it was evident that K.B.'s injuries would be a material issue of fact and that medical testimony, including testimony from K.B.'s treating physician, would be relevant. Yet, Mitchell waited until two weeks before trial to file the initial motion for continuance and waited until the day of trial to file the amended motion for continuance. Upon the whole, we believe that Mitchell failed to exercise due diligence as no reason existed for the delay in filing the motions for continuance. Thus, we cannot say that the circuit court abused its discretion by denying Mitchell's motion for continuance.
Mitchell also asserts that the circuit court erred by denying her motion for a directed verdict upon the offense of first-degree assault. In particular, Mitchell argues that "the Commonwealth did not produce any evidence to show [Mitchell] had a duty or that was [sic] serious physical injury or torture [was] committed by [Mitchell]. . . . The Commonwealth failed to prove [Mitchell] had a duty to [K.B.]. [K.B.] was not related to [Mitchell] and lived in the same deplorable conditions." Mitchell's Brief at 18, 19. Mitchell argues that she neither inflicted physical injury upon K.B. nor had a duty to prevent such injury, and that she was entitled to a directed verdict upon the offense of first-degree assault.
A directed verdict is properly granted if upon the whole of the evidence no reasonable juror could have found defendant guilty of the charged offense. Com. v. Benham, 816 S.W.2d 186 (Ky. 1991). In this case, we do not believe that Mitchell owed a duty to K.B. as a matter of law and that Mitchell was entitled to a directed verdict of acquittal upon first-degree assault; our reasoning is as follows.
Assault in the first-degree is codified in KRS 508.010 and provides, in part:
(1) A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
. . . .
(2) Assault in the first degree is a Class B felony.
Our Supreme Court has held that first-degree assault generally requires an affirmative and overt act by defendant. However, the Court recognized that an assault may take place where there exists a legal duty to act and the failure to act causes serious physical injury. Our case law recognizes that a legal duty to act may be imposed in four distinct circumstances:
[F]irst, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
West v. Com., 935 S.W.2d 315, 317 (Ky. App. 1996) (quoting Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962)). And, the determination of whether a legal duty exists is an issue of law for the court. Bartley, 400 S.W.3d 714.
In this case, the Commonwealth contends that Mitchell freely undertook a duty to care for K.B. and that she failed to discharge that assumed duty to K.B. However, there must also be evidence that Mitchell not only voluntarily assumed the duty to care for K.B. but also that she "so secluded [K.B.] . . . as to prevent others from rendering aid." West, 935 S.W.2d at 317.
At trial, the evidence was to the contrary. K.B.'s mother, Bartley, freely visited the mobile home weekly to deliver food and to take care of K.B. Mitchell in no way attempted to seclude K.B. from Bartley. Moreover, the evidence revealed that Bartley controlled Mitchell's only financial resource, her social security disability, and left her completely destitute and without even the most basic necessities, such as running water. Indeed, as his biological mother, Bartley possessed the ultimate duty to care for her incapacitated son, K.B. See Bartley, 400 S.W.3d 714.3
Hence, we do not believe that Mitchell possessed a legal duty to care for K.B. and that the circuit court erred by denying her motion for a directed verdict of acquittal upon the offense of first-degree assault.
We view Mitchell's remaining contentions as moot or without merit.
In sum, we reverse Mitchell's conviction of first-degree assault and affirm upon all other grounds
For the foregoing reasons, the judgment of the Monroe Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
ALL CONCUR.
