¶1concurring in part and dissenting in part.
¶2I concur with so much of the opinion that affirms the convictions and sentences imposed on Davis, but I must respectfully dissent from that portion of the opinion which reverses and remands the conviction imposed on Felts.
¶3The right of Felts to a unanimous verdict on the offense of first-degree criminal abuse was protected by the jury instructions when all the evidence presented at trial is carefully considered. In this case, there was sufficient evidence from which the jury could reasonably infer that Felts committed first-degree criminal abuse by either permitting her daughter to be abused or by personally abusing her. Certainly, no one witnessed the fatal injuries as they were inflicted and Davis consistently denied causing any injury. The evidence clearly establishes that the child suffered an ongoing history of abuse which started when she began living with Felts and Davis, stopped when she was taken from the home, but then resumed again when she was returned. The evidence was sufficient for the jury to reasonably conclude that it was Felts who was the actual abuser.
¶4There was medical evidence of bruising all over the body of the child, that the child had *583been beaten to death and ultimately suffered a fractured skull. All of this was entirely consistent with the infliction of serious physical injury, torture and cruel confinement and punishment. It was certainly the responsibility of the jury to weigh the various conflicting statements and evidence and to evaluate the credibility of the witnesses.
¶5In this case, the circuit judge provided the jury with thoughtful instructions based on the totality of the evidence which supported a reasonable inference that Felts had committed first-degree criminal abuse by either abusing her child or permitting the child to be abused, thereby causing her serious physical injury, placing her in a situation where she may sustain such injury or causing torture or cruel confinement or punishment as prohibited by KRS 508.100(1).
¶6In this case, the instructions given were clearly supported by the evidence and properly included alternative theories of criminal responsibility with regard to the first-degree criminal abuse charges against Felts. The jurors could have believed either of two theories, and in this case, both interpretations are supported by evidence beyond a reasonable doubt. Cf. Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993).
¶7Here, the evidence would support conviction under both theories, and the requirement of a unanimous jury verdict is satisfied pursuant to KRS 29A.280(3) and Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978).
¶8Under all the circumstances, the instructions were properly given and are fully supported by the evidence. The instructions do not blur the clear language of the statute and do not confuse the jury about the guilt of the mother.
¶9I would affirm the conviction of Felts as well as the conviction of Davis.
¶10GRAVES and LAMBERT, JJ., join in this opinion.