John Gray v. Commonwealth of Kentucky ( 2017 )

RENDERED: DECEMBER 14, 2017
TO BE PUBLISHED
2016-SC-000070-MR
JOHN GRAY APPELLANT
ON APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE ROBERT G. JOHNSON, JUDGE
NO. 14-CR-00217
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFiRMING
Appellant, John Wesley Gray, appeals from a judgment of the Scott
Circuit Court convicting him of three counts of violating a protective order, 1
kidnapping, two counts of first-degree unlawful imprisonment~ first-degree
. .
burglary, and being a first-degree persistent felony offender (PFO). With the
PFO enhancement, the jury recommended a total sentenc_e of 50 years in
prison. The trial court entered judgment accordingly. On appeal, Appellant
claims that the trial court erred by 1) admitting improper character evidence
arid 2) failing to grant a directed verdict on the two counts of first-degree
unlawful imprisonment. For the reasons stated below, we affirm the judgment.
1 Violating a protective order is a Class A misdemeanor under KRS 403.763.
I
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant's three-year romantic relationship with Angel Hardy came to
an abrupt end when Hardy discovered text messages on his phone that he was
involved with another woman. When Hardy confronted Appellant about his
infidelity, he threatened to shoot her in the face. Hardy ordered Appellant to
vacate the residence he shared with her and her children~ She also obtained
an emergency protective order (EPO) against him.
One week after entry of the EPO, Appellant returned to the residence
when no one was home. When Hardy's seventeen-year-old son, A.H.~ arrived.
with Hardy's granddaughter, T.T., Appellant confronted him with a gun in hand
and hit him in the face. He then used zip ties to bind the wrists of A.H. and
T.T., put duct tape over their mouths,. and put them in bedroom closets. When
Hardy arrived, Appellant hit her with a pistol and bound her wrists with zip
ties. Hardy successfully calmed Appellant by telling him they could resume
their relationship. At that point, Appellant untied Hardy and released A.H. and
T.T., however, he threatened further harm if Hardy reported the incident to
police. Rather than call the police immediately, Hardy decided to report the
incident when they appeared in court for the upcoming hearing to convert the
EPO to a domestic violence order. After Appellant left the residence, Hardy
asked her neighbors to call the police, if they saw him at the house again.
The next day, Appellant returned to the residence, and on the following
day, neighbors called the police. They arrived and arrested Appellant for the
apparent violation of the EPO. Hardy then reported the home invasion and
2
related offenses that occurred earlier. Appellant was-indicted. on four counts of
violating an EPO, three counts of kidnapping, fin~t-degree burglary, and being a
first-degree persistent felony offender (PF0).2 A jury found him guilty of three
counts of violating a protective order, kidnapping, two counts of first-degree
unlawful imprisonment, first-degree burglary, and being a first-degree PFO.
II. ANALYSIS
A. Evidence of Appellant's "other crimes, wrongs, or acts."
. .
l. The evidence of Appellant's prior threat against Hardy was not
improper.
Appellant's first assignment of error is the trial court's decision allowing
the jury to heat evidence of the th;reat that precipitated the issuance of tlie
EPO, Appellant's threat to shoot Hardy in the face. Prior to trial, the
Commonwealth filed notice under KRE 404(c) of its intent to introduce evidence
of the threat.3 Appellant objected and thus preserved the issue for appellate
review. The admission of "other acts" evidence under KRE 404(b) is reviewed
on appeal for abuse of discretion: whether the trial judge's decision to admit
the evidence was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles. Matthews v. Commonwealth, 163 s~W.3d 11, 19 (Ky. 2005);
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
2 Appellant was also indicted for possession of a handgun by a convicted felon,
but this charge was severed from the trial of the charges at issue in this appeal.
a The notice also disclosed the Commonwealth's intent to produce other "bad
acts" evidence, but those matters were resolved to the satisfaction of the parties.
3
KRE 404(b) is a rule of ~xclusion barring the admission of evidence of.
~other crimes, wrongs, or acts ... to prove the character of a person in order to
show action in c::onformity therewith." ,However, KRE 404(~) provides two
exceptions to the rule. Evidence of "other crimes, wrongs, or acts" may be
admitted if "offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." KRE 404(b)(l). And, such evidence may be admitted if it
is "so inextricably intertwined with other evidence essential to the case that
separation of the two (2) could not be accomplished without serious adverse
effect on the off~ring party." KRE 404(b)(2).
Even when deemed otherwise admissible under the KRE 404(b)
exceptions, the proffered evidence must also pass the balancing test of KRE
403, which authorizes the exclusion ·of any evidence when "its probative value
is substantially outweighed by the danger of undue prejudice, confusion of the
) . .
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence." Consequently, the admissibility of
Appellant's "other wrong, crime or act," i.e., his threat to shoot Hardy in the
face, must be evaluated by weighing its relevance, probative value and
prejudicial effect. Bell v. Commonwealth, 875 S.W.2d 882, 889-890 (Ky! 1994)
(Evidence of prior uncharged offense was properly admitted when it was
relevant to the crime charged, sufficiently probative, and its pro}lative value
outweighed its prejudice resulting from its admission.).
4
Citing Daniel v. Commonwealth, 905. S.W.2d 76, 78 (Ky. 1995), Appellant
contends that the Commonwealth never demonstrated. how Appellant's threat
tended to establish his intent, motive, plan, or any other relevant purpose
bringing it within the 404(b)(l) exception, or that the threat was inextricably
intertwined with evidence essential to proving the crimes charged so as to bring
it within the 404(b)(2) exception. He contends that the prior threat had little or
no probative value because the jury would be otherwise aware of the issuance
of the EPO, and the act the precipitated the EPO would simply add undue
prejudice and arouse the jury's emotions against him.
The Commonwealth argues that because of the context ir:i which the
threat was made-Appellant and Hardy fighting over his unfaithfulness-the
threat was probative and relevant to explain the EPO and its violation. Citing
Clark v. Commonwealth, 267 S.W.3d 668, 681 (Ky. 2008), the Commonwealth
further contends that Appellant's threat tended to verify the fact that Hardy
delayed her reporting the home invasion because she was afraid of Appellant,
thus making the threat inextricably intertwined with other evidence. ·.
In Clark, the mother of sexual abuse victims did not immediately
: confront her physically abusive cohabitating boyfriend about sexually abusing
the children because she was afraid he would do her harm. She waited until
the next day to report him. The Clark court held that
the setting and context of the events surrounding [the mother's]
discovery of the sexual abuse of her children, and her rea~ons for
not contemporaneously confronting [her long-term boyfriend,_ the] -
Appellant about it, were germane to the overall sequence of events
surrounding the crimes and to the events which led to them being
5
reported to authorities. As such, this evidence was inextricably
intertwined with other evidence critical to the case:
267 S.W.3d at 681.
The trial court conducted a pre-trial hearing on the issue. ·We cannot say
that it abused its discretion upon concluding that Appellant's threat, uttered
just a week before the crimes, served a relevant purpose other than to prove
Appellant's criminal disposition, and that the.potential for prejudice resulting
from the evidence did not substantially outweigh its probative value. Bell, 875
S.W.2d at 889-891; Billings v. Commonwealth, 843 S.W.2d 890 (Ky. 1992). We
are satisfied that the evidence of Appellant's recent threat to shoot Hardy in the
face was relevant to explain her reluctance to report Appellant's later crimes
until after he was arrested. We agree with the trial court that the prejudicial
_impact of the evidence was outweighed by its probative value.
2. The trial court's admonition cured any prejudice caused by testimony
that Appellant said he h.'1.d "a violent history."
Hardy testified that Appellant told her that he was angry because he
thought the EPO would prevent him from seeing his children since, in· his
words, he "had a violent history." Appellant objected to that testimony and
moved for a mistrial. The trial court declined to declare a mistrial and instead,
admonished the jury to "disregard the comment made about [Appellant's]
history." Appellant argues that the jury likely inferred from that testimony that
Appellant had an established record of violence, and that he had acted in
conformity with a criminal disposition. He contends that the admonition was
6
insufficient to erase the prejudice caused by the testimony, as suggested by the
severity of a 50-year prison sentence.
The Commonwealth concedes that Hardy should not have repeated the
portion of. Appellant's statement referring to his "violent history," but asserts
. that a mistrial was not warranted under the facts of this case. A trial court is
authorized to use its discretion to declare a mistrial only when there ~s a
manifest necessity, when the right to a fair trial has been infringed upon and
the prejudicial eventcannot otherwise be remedied. Radford v. Lovelace, 212
S.W.3d 72, 79-80 (Ky. 2006) (overruled on other grounds by Cardine v.
Commonwealth, 283 S.W.3d 641 (Ky. 2009)). An admonition to the jury
ordinarily cures an accidental admission of prior bad acts. Boyd v.
Commonwealth, 439 S.W.3d 126, 132-133 (Ky. 2014) (citation omitted).
Appellant argues that in this case, as evidenced by the 50-year sentence, there
was an "overwhelming probability that the jury [was] unable to follow the
court's admonition and there [was] a strong likelihood that the effect of the
inadmissible evidence [was] devastating" to a fair trial. Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).4
We do not regard Hardy's testimony as a statement in which Appellant
. attributed to himself any specific crimes for wrongful acts. The testimony was
combined with Hardy's explanation of Appellant's unlawful entry into her
home, his restraint of her son and granddaughter, and his assault upon her.
4 The other exception to the presumptive efficacy of an admonition is when the
question was asked Without a factual basis and was "inflammatory" or "highly
prejudicial." Id. (citations omitted).
7
(
In context, given the evidence presented and Appellant's PFO status, the
aggregate sentence of fifty years does not stand out as symptomatic of a jury
inflamed by the reference to Appellant as a man with a "violent history." It
.does little to persuade us the that the jury failed to heed the admonition.
Matthews v. Commonwealth, 163· S.W.3d 11, 17 (Ky. 2005).
We acknowledge the truth of Appellant's argument that "unring[ing] the
bell" of unfairly prejudicial testimony is impossible. 5 We simply conclude that
,.
the statement underreview di.~ not ring the bell so loudly that its resonance·
muted the curative. effect of the judge's admonition. The trial court's denial of a
mistrial was not an abuse of discretion.
B. We decline to grant palpable error review of Appellant's claim that he
was entitled to a directed verdict ·on first-degree unlawful
i,mprisonment.
The trial court separately instructed the jury on the kidnapping of A.H.
and T.T. With respect to each alleged victim the trial court also instructed on
the lesser induded offenses of first-degree unlawful imprisonment and second-
degree unlawful imprisonment. Appellant affirmatively requested the
instructions on second-degree lawful imprisonment and he voiced no objection
to the instructions on first-degree unlawful imprisonment. Appellant did not
move for a directed verdict on those charges.
On appeal; Appellant seeks palpable error review of the trial court's
failure to grant, sua. sponte, directetj. verdicts on the charges of first-degree
s Dickerson v. Commonwealth, 174 S.W.3d 451, 466 (Ky. 2005) (quoting Foster
v. Commonwealth, 827 S.W.2d 670, 683 (Ky. 1991)).
8
unlawful imprisonment. As grounds for his argµment, appellant asserts that
the Commonwealth failed to prove an essential element of first-degree unlawful
imprisonment as defined by KRS 509.020(.1): that A.H. and T.T. were exposed
to a risk of serious physical injury.6 We conclude the Appellant is not entitled
to the relief he seeks.
A "directed verdict of acquittal [is properly granted] when the defendant
is entitled to a complete acquittal, i.e., when looking at the evidence as a whole,
it would be clearly unreasonable for a jury to find the defendant gui~ty, under
any possible theory, of any of the crimes charged in the indictment or of any
lesser included offenses." Campbefl v. Commonwealth, 564 S.W.2d 528, 530
(Ky. 1978) (emphasis added); accord Baker v. Commonwealth, 973 S.W.2d 54,
55 (Ky. 1998); Acosta v. Commonwealth, 391S.W.3d809, 817 (Ky. 2013).
Notwithstanding Appellant's failure to move for the directed verdict he
now claims he should have had, upon application of the above-stated rule, the
actual question, properly framed, is whether Appellant was entitled to a
directed verdict acquitting him. of the primary charge of kidnapping and its
· lesser included offenses. Addressing that question requires a look at the
evidence as a whole to determine if it would be clearly unreasonable for a jury
to find him guilty of kidnapping or either of the two lesser included offenses of
first-degree and second-degree unlawful imprisonment.
6 KRS 509.020(1) provides that "[a] person is guilty of unlawful imprisonment in
the first. degree when he knowingly and unlawfully restrains another person under
circumstances which expose that person to a risk of serious physical injury."
9
Since Appellant expressly r:equested instructions on second-degree
unlawful imprisonment, he conceded the evidence was suffident on that
charge. 7 He contends only that it was clearly unreasonable for the jury to find
him guilty of first-degree unlawful imprisonment. Based upon Campbell,
Baker, and Acosta we conclude that the trial court did not err by failing to
enter a directed verdict.
' I
By couching his request for palpable error review in terms of the directed
verdict standard, Appellant s~eks to evade. the barrier that RCr 9.54(2) 8 poses
for the real issue he would have us address: whether the trial court erred by ·
instructing the jury on first-degree
.
unlawful imprisonment
.
in light of the scant
evidence of a risk of serious physical injury to A.H. and T.T. To preserve his
claiin that_
the evidence is insufficient to sustain the burden of proof on one or
more, but less than all, of the issues presented by the case, the
correct proc,edure is to object to the giving of instructions on those
particular issues. . . . The appropriate proeedure here would thus
have been for appellant, at the close of the evidence and before the
instructions were given, to apprise the trial court that he objected
to the giving of [the first-degree unlawful imprisonment
instruction] for the reason that [the crime] had not been
sufficiently proven.
7 KRS § 509.030(1) provides that "[a] person is guilty of unlawful imprisonment
in the second degree when he knowingly and unlawfully restrains another person."
. s RCr 9.54(2) states: No party may assign as error the giving or the failure to
give an instruction unless the party's position has been fairly and adequately
presented to the trial judge by an offered instruction or by motion, or unless the party
makes objection before the court instructs the jury, stating specifically the matter to
which the party objects and the ground.or grounds. of the objection.
I 10
Kimbrough u. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977); accord
Campbell, 564 S.W.2d at 530.
·In Martin u. Commonwealth, 409 S.W.3d 340 (Ky. 2013), we clarified the
effect of RCr 9.54(2)i on palpable error review of unpreserved claims of
erroneous jury instructions .. "Although palpable error under RCr 10.26 may be
available for certain kinds of instructional error ... RCr 9.54(2) bars palpable
error review for unpreserved claims that the trial court erred in the givihg or
the failure to give a specific instruction." Id. at 345. Appellant did not object to
giving of jury instructions on first-degree unlawful imprisonment anq so the
trial court's decision to give those instructions is not subject to palpable error
review. We see no reason to obliquely address the same issue under the guise
of a directed verdict issue when it is clear that Appellant was not entitled to· a
directed verdict of acquittal on the primary charge of kidnapping.
III. CONCLUSION
For the reasons stated above, we affirm the judgment of the Scott Circuit
Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
11
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Thomas Allen Van De Rostyne
Assistant Attorney General
12