Commonwealth v. Davidson

Opinion by Justice

WILL T. SCOTT,

concurring in part and dissenting in part.

Although I concur with the Court’s holding that the trial court’s instructions on second-degree assault were erroneous for reasons that they required proof of a “physical injury,” rather than a “serious physical injury” as required by KRS *236500.080(3), I disagree that this “instructional error” constitutes grounds for a bar of double jeopardy. Thus, I respectfully dissent on this issue as this Court’s finding of “insufficiency of the evidence” reflects a measurement of the evidence under a “new standard” created as a…