Gregory Miller v. Commonwealth of Kentucky ( 2020 )

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2018-SC-000648-MR E 3^
GREGORY MILLER APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT
V. HONORABLE JEFFREY THOMAS BURDETTE, JUDGE
CASE NO. 16-CR-00565
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
A Pulaski County jury found Gregory Scott Miller guilty of one count of
first-degree wanton endangerment of Joshua Godby; one count of first-degree
wanton endangerment of Ashley Hunt; and one count of first-degree burglary.
For each count of wanton endangerment, Miller received a sentence of five
years of imprisonment. For the single burglary charge, Miller received a
sentence of twenty years. The sentences were ordered to run consecutively, and
Miller therefore received a total sentence of thirty years of imprisonment. This
appeal followed as a matter of right. See Ky. Const. Section 110(2)(b). Having
reviewed the record and the arguments of the parties, we hereby affirm in part
and reverse in part the judgment of the Pulaski Circuit Court and remand for
further proceedings consistent with this opinion.
BACKGROUND
Miller’s convictions stem from a confrontation between Miller and Joshua
Godby on August 18, 2016. Prior to that incident, Miller and Godby had been
friends. The friendship turned sour, however, when Godby had a brief sexual
affair with Miller’s girlfriend. Godby testified that he “messed around” with
Miller’s girlfriend “a time or two.” Several months to one year1 prior to the
incident in question, Miller confronted Godby about the affair while the two
were at Miller’s home. During that confrontation, Godby pushed Miller, and
Miller retrieved his gun and hit Godby on the arm2 as Godby was leaving the
home. After that confrontation,3 the two men exchanged text messages in
which they “badmouthed” each other. Godby described these as “come on” and
“come get it” messages. However, the two did not see each other again until the
August 2016 incident.
Miller did, however, appear at the Godby home in April 2016, a few
months prior to the incident giving rise to this case, but Godby was not home
at the time. On that occasion, Godby’s live-in girlfriend, Ashley Hunt, was
1 Godby testified at trial that Miller confronted him about “seven months to a
year” prior to the August 2016 incident that gave rise to this case.
2 It is unclear whether Miller hit Godby’s arm with his hand or his gun. It is
also unclear what type of gun Miller retrieved.
3 It is unclear exactly when these text messages were exchanged. Godby
testified only that they exchanged the messages “after. . . we got in the fight at his
house.” He later testified that, at the time of the August 2016 incident, he had not had
“any kind of contact” with Miller for “a long time.”
2
leaving the house and walking to her car when Miller pulled his car in behind
her. He got out of his car and began walking towards her, with a holstered
pistol on his side. As Miller walked towards Hunt, he put his hand on the pistol
but did not remove it from its holster. He did not threaten Hunt, but Hunt
testified that Miller was “very aggressive,” and she felt threatened. She asked,
“Whoa, what are you doing?” to which Miller replied, “Is Josh home?” Hunt told
Miller that she was the only one there, and he eventually left. Shaken, Hunt
called the police to file a report. No charges were filed, however. Hunt testified
that the officers told her that it would be difficult to press charges because it
would be her word against Miller’s.
A few months later, in the late afternoon of August 18, 2016, ten-year-
old Ben Godby, Joshua Godby’s son, was outside his father’s house practicing
his golf swing. His father was inside the home watching television with Hunt.
While Ben was practicing, Gregory Miller pulled up to the house, got out of his
car, and approached Ben. Ben testified that, at that time, Miller was “familiar”
to him but he “didn’t really know his name.” Miller carried a 20-gauge shotgun
with him, and according to Ben, he “was holding it ready to fire it if he needed
to.” Miller asked the boy where his father was, and Ben said that his father was
in the basement before remembering that he was in his bedroom. Ben was
intimidated by the gun but believed that Miller “might have needed to talk to
[his dad] for a minute.”
Ben led Miller into a screened-in front porch on the house, believing that
Miller would wait there while Ben retrieved his father. Ben did not invite Miller
3
into the home, and Miller did not ask if he could enter the home. Nevertheless,
Miller walked past Ben, opened the unlocked door, and entered the home.
Miller was not sure where Godby’s bedroom was, however, so Ben took Miller to
his father’s room. Ben knocked and told his father that someone was there to
talk to him, then moved behind Miller. At this point, Miller knocked loudly and
kicked the bedroom door, which was locked. Ben testified that Miller began
cursing and yelling at Godby to come out of the bedroom. It is unclear how
Miller was holding the shotgun or in what direction it was pointed. Ben testified
that, at this point, he ran from the hallway to the kitchen, where he sat down,
hiding, unsure what to do.
Godby and Hunt heard Miller say, “Godby, I got you now” and recognized
the voice as Miller’s. With Miller pounding on the bedroom door, Godby entered
a bathroom that was attached to his bedroom. The bathroom also had an
entrance in the hallway. Godby exited the bathroom into the hallway, where he
saw Miller standing with the shotgun. It is unclear whether Miller was still
facing the bedroom door or where he was pointing the gun when Godby exited
the adjacent bathroom door, but Godby testified that the gun was not pointed
at him. Upon seeing the shotgun, Godby grabbed the barrel of the gun and
pushed it up. The gun discharged, shooting straight into the ceiling. Godby
wrestled the gun from Miller’s hands and threw it aside. He “manhandled”
Miller to the floor and hit Miller several times as Miller proclaimed that he
“didn’t do this” and it was not his gun. Both Godby and Hunt testified that
Miller repeatedly exclaimed, “We’re friends!”
4
Meanwhile, prior to the gun being discharged, Ben had come out of his
hiding spot in the kitchen and was peeking into the hallway. He saw a flash
and heard the gunshot. He testified that he was scared and ran outside the
house and across the street to a neighbor’s home.
At the time the gun discharged, Hunt was still in the bedroom or
bathroom.4 She then exited through the bathroom into the hallway and saw
Miller and Godby struggling over the gun. When Godby took the gun from
Miller and tossed it aside, Hunt picked it up. Still carrying the gun, she called
911 as she walked around the house looking for Ben. Unsure of where he was,
she walked out of the front door of the house to look for him. Her neighbor
then informed her that Ben was safe, and Hunt reentered the home. She
returned to the hallway, where Godby still had Miller on the ground. Hunt
testified that, at some point, she considered shooting Miller but chose instead
to hit Miller twice with the gun. Godby and Hunt kept Miller subdued until
police officers arrived.
A jury trial took place on August 14 and 15, 2018. The jury convicted
Miller of one count of first-degree wanton endangerment in relation to Joshua
Godby, one count of first-degree wanton endangerment in relation to Ashley
Hunt, and one count of first-degree burglary. He was sentenced to a total of
thirty years of imprisonment, and this appeal followed as a matter of right.
4 It is unclear from Hunt’s testimony whether she had entered the bathroom by
the time the gun discharged.
5
ANALYSIS
Miller asserts the following errors on appeal: (1) the trial court erred in
denying his motions for directed verdict on all counts; (2) the trial court abused
its discretion in allowing testimony about a prior bad act in violation of KRE
404(b); and (3) the trial court erred in declining to instruct the jury on the
lesser-included offenses of second-degree wanton endangerment and criminal
trespass. For the reasons set forth below, we hold that the trial court erred in
denying Miller’s motion for a directed verdict on the count of first-degree
wanton endangerment of Ashley Hunt. We further hold that the trial court
erred in declining to instruct the jury on the lesser-included offense of second-
degree wanton endangerment of Joshua Godby. Lastly, we hold that the trial
court erred in allowing the Commonwealth to introduce the contested KRE
404(b) evidence, but this error was harmless and does not warrant reversal of
the remaining charge, burglary. In sum, we reverse the first-degree wanton
endangerment convictions of both Ashley Hunt and Joshua Godby, but affirm
the first-degree burglary conviction. We address each of these charges in turn.
I. First-degree wanton endangerment of Ashley Hunt
We first address Miller’s conviction for first-degree wanton endangerment
of Godby’s live-in girlfriend, Ashley Hunt. We begin with Miller’s argument that
the trial court should have granted his motion for directed verdict on this
charge. In reviewing the trial court’s ruling on this issue, we are mindful of the
following:
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
6
Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Simply put, “there
must be evidence of substance, and the trial court is expressly authorized to
direct a verdict for the defendant if the prosecution produces no more than a
mere scintilla of evidence.” Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3,
5 (Ky. 1983)). Thus, so long as the Commonwealth produces more than a mere
scintilla of evidence to support the charges, a defendant’s motion for directed
verdict should be denied. When an appellate court reviews the trial court’s
decision to deny a motion for directed verdict, that court must consider
whether, “under the evidence as a whole, it would be clearly unreasonable for a
jury to find guilt” because “only then the defendant is entitled to a directed
verdict of acquittal.” Id. (citing Sawhill, 660 S.W.2d at 5).
Under Kentucky Revised Statute (“KRS”) 508.060(1), “[a] person is guilty
of wanton endangerment in the first degree when, under circumstances
manifesting extreme indifference to the value of human life, he wantonly
engages in conduct which creates a substantial danger of death or serious
physical injury to another person.” For purposes of the Kentucky Penal Code,
“[a] person acts ‘wantonly’ with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur or that
7
the circumstance exists.” KRS 501.020(3). Furthermore, “[t]he risk must be of
such nature and degree that disregard thereof constitutes a gross deviation
from the standard of conduct that a reasonable person would observe in the
situation.” Id.
Miller argues that the trial court should have granted his motion for
directed verdict on the charge of first-degree wanton endangerment of Hunt
because she was not in the hallway at the time the gun discharged, the gun
was never pointed at her, and she was not in close proximity to the gun when it
discharged. Thus, he argues, no reasonable juror could conclude that Hunt
was exposed to conduct creating a substantial danger of death or serious
physical injury.
On this point, we find Swan v. Commonwealth, 384 S.W.3d 77 (Ky. 2012)
to be instructive. In Swan, two armed men entered a home and ordered its
occupants into the living room. Several of the home’s occupants gathered in the
living room, but one woman, Ms. Lumpkins, stayed in a back bedroom and hid
under the bed. Meanwhile, in the living room, the intruders shot two of the
home’s occupants, fired one shot into the ceiling, and fired one shot into the
fireplace. Both men were convicted of multiple charges, including several
charges of first-degree wanton endangerment.
On appeal, we considered whether the trial court properly denied one
defendant’s motion for a directed verdict on the wanton endangerment charges.
We noted that “[f]iring a weapon in the immediate vicinity of others is the
prototype of first degree wanton endangerment. This would include the firing of
8
weapons into occupied vehicles or buildings.” Id. at 102 (quoting Robert G.
Lawson 8s William H. Fortune, Kentucky Criminal Law § 9-4(b)(2), at 388 n.142
(1998)) (internal quotation marks omitted). “Thus,” we explained, “the proof of
[the defendants] firing their guns near the victims assembled in the living room
was ample proof to support the first-degree convictions related to those
victims.” Id. at 102-03.
However, as to Ms. Lumpkins, we noted that “[n]o evidence showed that
a bullet was fired in Ms. Lumpkins’s direction or that [the defendant] pointed a
gun at her. And unlike the victims in the front room, Ms. Lumpkins was not
present when [the defendant] and his confederate were waving their guns
around haphazardly and making threats.” Id. at 103. Thus, we explained that
“[e]ven when viewing the evidence in a light most favorable to the
Commonwealth, it is difficult to conceive of an actual danger of death or
serious physical injury to which Ms. Lumpkins was exposed.” Id. Furthermore,
while we acknowledged that bullets may ricochet, we concluded that “[t]he self-
evident danger of ricocheting bullets must have limits.” Id. Accordingly, we held
that the trial court should have granted the defendant’s motion for directed
verdict on the charge of first-degree wanton endangerment of Ms. Lumpkins.
In the present case, Hunt’s position at the time the gun discharged was
more like Ms. Lumpkins’s position than the other victims’ positions in Swan.
The evidence indicates that Hunt was in the bedroom or bathroom at the time
the gun discharged; she was not in the hallway. There is no evidence that the
gun was pointed toward either room. Furthermore, the gun was discharged
9
into the ceiling of the hallway. While we acknowledge that a bullet may ricochet
and hit someone outside of its initial trajectory, we are also mindful of our
earlier statement that “[t]he self-evident danger of ricocheting bullets must
have limits.” Id. In this case, the evidence does not indicate that Hunt was in
such close proximity to be endangered by the threat of a ricochet. In sum,
Hunt was not in the immediate vicinity of the gun at the time it discharged, nor
was there any evidence presented that her location in the bedroom or bathroom
put her at risk of any injury or danger from the firing of the gun.
Under these specific circumstances, we hold that no reasonable juror
could conclude that Hunt was exposed to conduct creating a substantial
danger of death or serious physical injury. Accordingly, the trial court erred in
denying Miller’s motion for directed verdict on the charge of first-degree wanton
endangerment of Hunt. We must therefore reverse and vacate the judgment of
the circuit court regarding count three of the indictment, first-degree wanton
endangerment of Ashley Hunt.
II. First-degree wanton endangerment of Joshua Godby
Having reversed the conviction for first-degree wanton endangerment of
Hunt, we turn to Miller’s conviction for first-degree wanton endangerment of
Godby. We first note that the Commonwealth produced sufficient evidence to
survive a motion for a directed verdict on the charge of first-degree wanton
endangerment of Godby, and therefore, the trial court did not err in denying
that motion. However, we need not discuss that analysis in detail, as we hold
that the first-degree wanton endangerment conviction of Godby must be
10
reversed for failure to provide a juiy instruction on the lesser-included offense
of second-degree wanton endangerment.
At the close of evidence, Miller requested instructions on the lesser-
included offenses of second-degree wanton endangerment and criminal
trespass. However, the trial court denied the request, finding that there was
sufficient evidence to prove the charged offenses and that Miller had not put on
any evidence that would require lesser-included instructions. For the following
reasons, we find that the trial court erred in declining to provide the requested
instruction on second-degree wanton endangerment.5
We have previously explained, “It is always the duty of a trial court to
instruct a jury on lesser included offenses when it is so requested and it is
justified by the evidence.” Martin v. Commonwealth, 571 S.W.2d 613, 615 (Ky.
1978). We have also emphasized that a defendant “‘is entitled to an instruction
on any lawful defense which he has,’ including instructions on lesser included
offenses.” Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011) (quoting
Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006)).
More recently, we clarified that “[a)n instruction on a lesser included
offense is required only if, considering the totality of the evidence, the jury
might have a reasonable doubt as to the defendant’s guilt of the greater
offense, and yet believe beyond a reasonable doubt that he is guilty of the
lesser offense.” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012)
5 We address the criminal trespass instruction below.
11
(quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)) (internal
quotation marks omitted). Thus, on appeal, the reviewing court asks “whether
a reasonable juror could acquit of the greater charge but convict of the lesser.”
Allen, 338 S.W.3d at 255 (citations omitted). In doing so, the reviewing court
should “consider[] the evidence favorably to the proponent of the instruction.”
Id. (citations omitted).
In this case, the trial court concluded that lesser-included instructions
were unnecessary because Miller had failed to put on any evidence to support
those lesser-included offenses and there was sufficient evidence to prove the
charged offenses of first-degree wanton endangerment and burglary. On this
point, we note that the burden to prove the elements of the charged offenses
rests with the Commonwealth. See KRS 500.070(1). The defendant is not
required to put on evidence to disprove any element of an offense in order to
receive an instruction on a lesser-included offense. Therefore, the trial court
improperly considered this point when ruling on the instruction request.
Furthermore, the trial court did not consider whether a reasonable juror
could acquit on the greater charges and convict on the lesser, and instead
considered only whether a reasonable juror could possibly convict on the
greater charges.6 It appears, then, that the trial court improperly applied the
6 The trial court recited the rule that “[a]n instruction on a lesser included
offense is required only if, considering the totality of the evidence, the jury might have
a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe
beyond a reasonable doubt that he is guilty of the lesser offense.” Hudson, 385 S.W.3d
at 416 (quoting Houston, 975 S.W.2d at 929) (internal citation marks omitted).
However, the trial court did not perform that analysis.
12
standard for considering a motion for directed verdict, rather than a request for
lesser-included instructions. See Benham, 816 S.W.2d at 187 (“If the evidence
is sufficient to induce a reasonable juror to believe beyond a reasonable doubt
that the defendant is guilty, a directed verdict should not be given.”).
Accordingly, we now turn to Miller’s conviction for first-degree wanton
endangerment of Godby and ask “whether a reasonable juror could acquit of
the greater charge[s] but convict of the lesser.” Allen, 338 S.W.3d at 255
(citations omitted). Having reviewed the evidence as a whole and construing
that evidence favorably to Miller, we conclude that a reasonable juror could
have acquitted Miller of the charge of first-degree wanton endangerment of
Godby but convicted on the lesser included offense of second-degree wanton
endangerment.
As stated above, first-degree wanton endangerment requires that a
person, “under circumstances manifesting extreme indifference to the value of
human life, . . .wantonly engage[] in conduct which creates a substantial
danger of death or serious physical injury to another person.” KRS 508.060(1).
The lesser-included offense of second-degree wanton endangerment requires
only that a person “wantonly engage [] in conduct which creates a substantial
danger of physical injury to another person.”7 KRS 508.070(1). We have
previously explained,
7 Second-degree wanton endangerment is a lesser-included offense of first-
degree wanton endangerment. See Combs v. Commonwealth, 652 S.W.2d 859, 860 (Ky.
1983).
13
The differences between first- and second-degree wanton
endangerment are the mental state and degree of danger created.
As to the mental state, both crimes require wanton behavior, but
first-degree also requires “circumstances manifesting extreme
indifference to the value of human life,” which has been described
as “aggravated wantoness.” As to the danger created, first-degree
requires a substantial danger of death or serious physical injury,
whereas second-degree requires only a substantial danger of
physical injury.
Swan, 384 S.W.3d at 102 (internal citations omitted). Thus, if a jury believed
that Miller wantonly engaged in conduct creating a substantial danger of
physical injury but held reasonable doubts about whether he did so under
circumstances manifesting extreme indifference to the value of human life or
whether he created a substantial danger of death or physical injury, the juiy
could acquit Miller of first-degree wanton endangerment but convict him of
second-degree wanton endangerment as to Joshua Godby.
Based on the evidence in this case, a reasonable juror could conclude
that Miller acted wantonly and created a substantial risk of physical injury
toward Godby. For purposes of the Kentucky Penal Code, “[a] person acts
'wantonly’ with respect to a result or to a circumstance described by a statute
defining an offense when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists.” KRS 501.020(3). In this case, a jury could reasonably
conclude that Miller acted wantonly in carrying a loaded shotgun into Godby’s
home, “holding it ready to fire if he needed to.” Godby testified that Miller was
not invited to Godby’s home and Godby was not expecting him. The evidence
also indicates that Miller and Godby were no longer on friendly terms. A
14
reasonable juror could conclude that Miller was aware of and consciously-
disregarded the risk that a confrontation could occur and that the gun could
discharge, creating a substantial danger of physical injury to another person.
A reasonable juror could conclude, however, that while Miller acted
wantonly, he did not create a substantial danger of death or serious physical
injury, as required for first-degree wanton endangerment. Importantly, there is
no evidence in this case that Miller pointed the gun at anyone. This
distinguishes this case from prior precedent holding that “the pointing of a
gun, whether loaded or unloaded (provided there is reason to believe the gun
may be loaded) at any person constitutes conduct that ‘creates a substantial
danger of death or serious physical injury to another person’ in violation
of KRS 508.060.” Key v. Commonwealth, 840 S.W.2d 827, 829 (Ky. App. 1992);
see also Commonwealth v. Clemons, 734 S.W.2d 459 (Ky. 1987). (holding that
the pointing of a gun at another person is sufficient to satisfy wanton
endangerment charge), Thomas v. Commonwealth, 567 S.W.2d 299 (Ky. 1978)
(same).
Furthermore, in this case, it is not clear how the gun discharged, but a
reasonable juror could conclude that it discharged as a result of the struggle
between Miller and Godby and not because Miller pulled the trigger. For
example, Godby testified that he was not sure how the gun discharged but
acknowledged that it could have happened during the struggle. In addition, the
gun was not pointed in the direction of any person and instead discharged into
the ceiling. In other words, a reasonable juror could believe that the firing of
15
the shotgun was accidental. This, in turn, distinguishes the present matter
from other cases in which the defendants were found guilty of first-degree
wanton endangerment after intentionally firing shots into crowds or towards
other people. See Smith v. Commonwealth, 410 S.W.3d 160, 166 (Ky. 2013);
Port v. Commonwealth, 906 S.W.2d 327, 334 (Ky. 1995); Combs, 652 S.W.2d at
860-61.
With these same facts in mind, a reasonable juror could also decide that
Miller did not act wantonly “under circumstances manifesting extreme
indifference to the value of human life,” as required by KRS 508.060(1). Again,
it is not clear how the gun discharged, but a reasonable juror could conclude
that it accidentally discharged during the struggle. On this point, we note the
difference between carrying a loaded shotgun into another person’s home and
intentionally firing a shotgun in that person’s occupied home. We believe the
latter could demonstrate “extreme indifference to the value of human life,”
while the former does not necessarily indicate this particular mental state. For
example, in Swan, we noted that aimlessly firing a gun in public would
constitute second-degree wanton endangerment, while firing a gun in the
immediate vicinity of others demonstrates a level of wantonness sufficient to
satisfy first-degree wanton endangerment. See 384 S.W.3d at 102. In both
scenarios, however, the gun is intentionally fired, while in the present case, a
reasonable juror could conclude that the gun was accidentally discharged
during the struggle. Thus, a reasonable juror could examine the evidence in
16
this case and determine that Miller acted wantonly but not “under
circumstances manifesting extreme indifference to the value of human life.”
Having considered the totality of the evidence in this case, we conclude
that a reasonable juror could have acquitted of the greater charges of first-
degree wanton endangerment but convicted Miller of second-degree wanton
endangerment as to Godby. Accordingly, the trial court erred in declining to
instruct the juiy on the lesser-included offense. This constitutes reversible
error, and we must therefore reverse the judgment of the trial court as it relates
to the count of first-degree wanton endangerment of Joshua Godby. See Oakes
v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (explaining that “[t]he failure
to grant a request for a lesser-included offense instruction is reversible error”);
Commonwealth v. Swift, 237 S.W.3d 193, 196 (Ky. 2007) (explaining that “the
trial court’s failure to give a necessary lesser-included offense instruction
cannot be deemed a harmless error” (citing Webb v. Commonwealth, 904
S.W.2d 226, 229 (Ky. 1995).
III. First-Degree Burglary
Having concluded that we must reverse Miller’s convictions for first-
degree wanton endangerment of both Hunt and Godby, we next address
Miller’s remaining conviction for first-degree burglary. As we discuss below, we
first conclude that the trial court did not err in denying Miller’s motion for
directed verdict on this charge. We also hold that the trial court did not err in
denying Miller’s request for an instruction on the lesser-included offense of
criminal trespass. Because the burglary conviction survives those two
17
arguments, we also consider Miller’s KRE 404(b) argument. For the reasons set
forth below, we conclude that the trial court erred in admitting inappropriate
“bad acts” evidence under KRE 404(b), but that this error was harmless. We
therefore affirm Miller’s conviction for first-degree burglary.
A. The trial court did not err in denying Miller’s motion for
directed verdict.
We first consider whether, “under the evidence as a whole, it would [have
been] clearly unreasonable for a jury to find guilt” on the charge of first-degree
burglary, in which case Miller would have been entitled to a directed verdict of
acquittal. Benham, 816 S.W.2d at 187.
Under KRS 511.020(l)(a), “[a] person is guilty of burglary in the first
degree when, with the intent to commit a crime, he knowingly enters or
remains unlawfully in a building, and when in effecting entry or while in the
building or in the immediate flight therefrom, he or another participant in the
crime . . . [i]s armed with explosives or a deadly weapon.” Miller argues that a
directed verdict should have been granted on this charge because the
Commonwealth presented insufficient evidence to prove that Miller knew it was
unlawful for him to enter or remain in Godby’s home or, if he entered lawfully,
that his lawful presence was terminated, and that Miller intended to commit a
crime once he was inside the house.
On the question of whether he knew it was unlawful to enter or remain
in the home, Miller points to the fact that Miller had visited Godby’s home
approximately ten times in the past and had met Ben a couple of times. Ben
did not tell Miller to stay on the porch or to get out of the house, and he even
18
guided Miller to his father’s bedroom. We note, however, other facts suggesting
that Godby entered the home unlawfully. For example, Godby testified that he
was not expecting Miller, had not invited him to the home, and had not spoken
to him in several months, other than exchanging some heated text messages a
few months prior. When Miller approached Ben, he carried a shotgun and held
it in both hands as though he were ready to fire it. Ben, who was only ten years
old at the time of the incident, testified that he felt intimidated by the gun. Ben
also testified that he expected Miller to stay on the front porch, but Miller
walked past him, opened the front door, and walked into the home.
Furthermore, Ben testified that Miller walked into the home but could not
locate the bedroom; only then did Ben lead him to his father’s room. This
suggests that, if Miller had known where the bedroom was, he would have gone
there himself, without permission.
On this point, we believe the unpublished case of Higareda v.
Commonwealth, No. 2008-SC-000384-MR, 2009 WL 1451919 (Ky. May 21,
2009) is persuasive. In that case, Higareda knocked on the door of the victim’s
home, and the victim’s minor sibling opened the door. Higareda asked for the
victim, and the young boy said that the victim was sleeping in his bedroom.
Without permission from the child, Higareda entered the home and, with a gun
sticking out of his pocket, proceeded to the victim’s bedroom, where he
threatened the victim with the gun. We held that this evidence was sufficient to
overcome Higareda’s motion for directed verdict. In doing so, we relied on a
published Court of Appeals’ opinion, Fletcher v. Commonwealth, 59 S.W.3d 92019
(Ky. App. 2001), in which that court similarly upheld the denial of a motion for
directed verdict of a burglary charge. In that case, the court noted that the
victim, who had answered the door when the defendant knocked, did not make
“any kind of utterance, gesture or movement that could reasonably constitute
an invitation, either explicit or implicit, to [the defendant] to enter the home.”
Similarly, in the present case, there is no evidence that Ben invited Miller into
the home, either expressly or implicitly by gesture or movement. As the facts
recited above demonstrate, a juror could reasonably find that Miller was not an
invited or welcome guest. Thus, we conclude that the Commonwealth
presented sufficient evidence to convince a reasonable juror that Miller
knowingly entered the home unlawfully.
We also conclude that the Commonwealth presented sufficient evidence
for a reasonable juror to conclude that Miller intended to commit a crime when
he unlawfully entered the home. For example, there was evidence that Miller
carried a firearm into the house. This was not a holstered pistol or other small
firearm that one might carry on them at all times. Rather, it was a loaded
shotgun, and Ben testified that Miller carried it with both hands, as though he
were ready to fire it. While still carrying the gun, Miller kicked and knocked
loudly on Godby’s bedroom door, saying “I got you now.” He cursed and yelled
for Godby to come out of the bedroom. There was also evidence that Miller and
Godby had a falling out about a year prior over Godby’s affair with Miller’s
girlfriend. Miller and Godby had not seen each other since that falling out, and
Godby had not invited Miller over, nor was he expecting him at his home. From
20
this evidence, a reasonable juror could conclude that Miller entered the home
with the intent to commit a crime, namely, to threaten or harm Godby.
In sum, we conclude that the Commonwealth presented sufficient
evidence to cause a reasonable juror to find beyond a reasonable doubt that
Miller was guilty of first-degree burglary. Therefore, the trial court did not err in
denying Miller’s motion for a directed verdict on this charge.
B. The trial court did not err in denying Miller’s request for a
criminal trespass instruction.
We next consider whether the trial court erred in denying Miller’s request
for a jury instruction on the lesser-included offense of criminal trespass. In
other words, we ask “whether a reasonable juror could acquit of the greater
charge but convict of the lesser.” Allen, 338 S.W.3d at 255 (citations omitted).
In doing so, we “consider[] the evidence favorably to the proponent of the
instruction.” Id. (citations omitted).
As noted above, first-degree burglary requires one to knowingly enter or
remain unlawfully in a building with the intent to commit a crime, “and when
in effecting entry or while in the building or in the immediate flight therefrom,
he . . . [i]s armed with explosives or a deadly weapon.” KRS 511.020(1). The
lesser-included offense of criminal trespass differs from first-degree burglary in
that it requires only that one “knowingly enters or remains unlawfully in a
dwelling.”8 KRS 511.060(1). Thus, if a jury believed that Miller knowingly
8 Criminal trespass is a lesser-included offense of first-degree burglary. See
Hunt v. Commonwealth, 304 S.W.3d 15, 30 (Ky. 2009).
21
entered or remained unlawfully in Godby’s home, but the jurors held a
reasonable doubt about whether he did so with the intent to commit a crime,
the jury could acquit Miller of first-degree burglary but convict him of criminal
trespass.
Under the facts of the present case, however, a jury could not reasonably
conclude that Miller knowingly entered the home unlawfully without the intent
to commit a crime. We refer back to many of the facts previously mentioned:
Godby and Miller had not spoken in several months, and their last interactions
had been less than friendly. Miller had not been invited to Godby’s home and
Godby was not expecting him. Miller did not receive express permission to
enter the house from Ben, nor is there any evidence suggesting that Ben
implicitly invited Miller into the home, either by gesture or comment. Rather,
he approached the home with a loaded shotgun, which he held as though he
were ready to shoot it. He entered the home uninvited while wielding the
shotgun, approached Godby’s bedroom door, knocked loudly and kicked the
door, and yelled “I got you now.” Ben also testified that Miller “told [Godby] to
come out” and was cursing. Even viewing these facts in Miller’s favor, we hold
that a reasonable juror could not conclude that Miller knowingly entered the
home unlawfully but did not do so with the intent to commit a crime. In other
words, a jury could not interpret the evidence and reasonably conclude that
Miller committed criminal trespass, rather than burglary.
Having considered the totality of the evidence in this case, we conclude
that a reasonable juror could not have acquitted of the greater charge of
22
burglary but convicted Miller of criminal trespass. Accordingly, the trial court
did not err in declining to instruct the jury on the lesser-included offense.
C. The trial court erred in admitting evidence of the April 2016
incident, but the admission of such evidence was harmless
error.
Miller also argues that the trial court abused its discretion in allowing
the Commonwealth to elicit testimony about an April 2016 incident in which
Miller approached Hunt with a gun. Defense counsel was first notified about
the Commonwealth’s intent to elicit such testimony on the first morning of
trial. Defense counsel sought a continuance due to the lack of notice under
Kentucky Rule of Evidence (“KRE”) 404(c). The Commonwealth argued that
similar testimony had arisen during the preliminary hearing, thereby satisfying
the notice requirement. The prosecutor also argued that the testimony fell
outside the scope of KRE 404(b) because Miller’s canying of a gun during the
incident was not illegal and therefore was not a “bad act” under the rule. The
trial court overruled the motion for a continuance, found that defense counsel
had sufficient notice, and allowed the Commonwealth to elicit testimony about
the April 2016 incident.
During the Commonwealth’s case-in-chief, Godby testified that he knew
of an incident occurring between Miller and Hunt in April 2016. However, he
testified that he was not there, and the prosecutor did not pursue that line of
questioning further. Defense counsel did not object. During Godby’s cross-
examination, defense counsel elicited testimony about the April 2016 incident.
23
Godby ultimately said that he was not present for the incident and defense
counsel would have to ask Hunt about the details.
Later, Hunt testified for the Commonwealth and began to discuss details
about the April 2016 incident. Defense counsel objected “on the same
grounds.” His objection was overruled, and Hunt continued her testimony. She
testified that, in April 2016, she was leaving the house and walking to her car
when Miller pulled his car in behind her. He got out of his car and began
walking towards her, with a holstered pistol on his side. As Miller walked
towards Hunt, he put his hand on the pistol but did not remove it from its
holster.9 He did not threaten Hunt, but Hunt testified that Miller was “very
aggressive” and she felt threatened. She asked, “Whoa, what are you doing?” to
which Miller replied, “Is Josh home?” Hunt told Miller that she was the only
one there, and he eventually left. Shaken, Hunt called the police to file a report.
No charges were filed, however. Hunt testified that the officers told her that it
would be difficult to press charges because it would be her word against
Miller’s.
Miller now argues that the testimony should have been excluded under
KRE 404(b). More specifically, Miller argues that the trial court abused its
discretion in permitting this testimony, in failing to limit the prejudice of the
evidence (e.g., by limiting the extent of the testimony or providing a limiting
9 During Godby’s testimony about this incident, he mentioned Miller “waving”
the pistol but also stated that he was not present at the incident and only knew the
details he had heard from Hunt. During Hunt’s testimony, however, she clarified that
Miller never removed the pistol from its holster.
24
admonition), and in declining to continue the trial for lack of notice under KRE
404(c). For the reasons set forth below, we hold that the trial court erred in
admitting evidence of the April 2016 incident, but this error was harmless.
Under KRE 404(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.” Such evidence may be admissible, however, “[i]f 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)(1). It may also be admissible 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 offering party.” KRE
404(b)(2). However, if the Commonwealth intends to introduce such evidence in
its case-in-chief, “it shall give reasonable pretrial notice to the defendant of its
intention to offer such evidence.” KRE 404(c).
On appeal, we review the trial court’s decision to admit such evidence for
an abuse of discretion. Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky.
2008). In doing so, we are mindful that KRE 404(b) is an exclusionary rule, and
“any exceptions to the general rule that evidence of prior bad acts is
inadmissible should be ‘closely watched and strictly enforced because of [its]
dangerous quality and prejudicial consequences.” Huddleston v.
Commonwealth, 542 S.W.3d 237, 243 (Ky. 2018) (quoting Clark v.
Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007)); see also Bell v. Commonwealth,
875 S.W.2d 882, 889 (Ky. 1994) (explaining that “trial courts must apply [KRE
25
404(b)] cautiously, with an eye towards eliminating evidence which is relevant
only as proof of an accused’s propensity to commit a certain type of crime”).
As a threshold matter, we must address the Commonwealth’s contention
that the April 2016 incident is not a bad act under KRE 404(b). The
Commonwealth argues to this Court that the carrying of a gun is not illegal
and is therefore not a bad act. However, under the plain language of the rule,
KRE 404(b) applies to “(o]ther crimes, wrongs, or acts.”10 Thus, the prior act
need not be a criminal act to fall within the scope of KRE 404(b). In this case,
the mere possession of a personal firearm is not the bad act; rather, the bad
act is approaching Hunt in a threatening or aggressive manner, with his hand
on his pistol.
Because the Commonwealth intended to introduce evidence of this prior
bad act, it was required to provide reasonable notice under KRE 404(c). Under
that provision, if the Commonwealth intends to introduce such evidence in its
case-in-chief, “it shall give reasonable pretrial notice to the defendant of its
intention to offer such evidence.” KRE 404(c). If the Commonwealth fails to give
such notice, the court may exclude the evidence “or for good cause shown may
excuse the failure to give such notice and grant the defendant a continuance or
such other remedy as is necessary to avoid unfair prejudice caused by such
failure.” Id. However, in this case, the Commonwealth did not notify defense
10 We acknowledge that KRE 404(b) references “other crimes, wrongs, or acts”;
it does not use the phrase “bad acts.” However, Kentucky courts repeatedly refer to
such acts as “bad acts.”
26
counsel of its intent to elicit testimony about the April 2016 incident until the
first day of trial. Defense counsel sought a continuance due to the lack of
notice, but the Commonwealth argued that similar testimony had arisen during
the preliminary hearing, thereby satisfying the notice requirement. The trial
court overruled the motion for a continuance and found that defense counsel
had sufficient notice. We disagree.
We have previously stated that the purpose of the KRE 404(c)’s notice
requirement “is to provide the accused with an opportunity to challenge the
admissibility of this evidence through a motion in limine and to deal with
reliability and prejudice problems at trial.” Bowling v Commonwealth, 942
S.W.2d 293, 300 (Ky. 1997), (quoting Robert G. Lawson, The Kentucky Evidence
Law Handbook, § 2.25 (3rd Ed. 1993) (internal quotation marks omitted)),
overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky.
2011). Furthermore, “where the accused has received ‘actual notice’ of the
intention to introduce KRE 404(b) evidence and the accused has suffered no
prejudice, the notice requirement in KRE 404(c) is satisfied.” Matthews v.
Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005) (citations omitted).
In this case, the trial court ruled that defense counsel had prior notice
through the preliminary hearing. However, defense counsel argued that the
officer who testified at the preliminary hearing had only vaguely referenced an
earlier incident; it was unclear whether the officer was referencing the same
incident; and Hunt never testified about the incident during the preliminary
hearing. Furthermore, though when arguing this issue to the trial court, the
27
Commonwealth referenced a document (but not a police report) that details the
April 2016 incident, it apparently did not provide this document in discovery.
Accordingly, from the facts available in the record, we must conclude that
defense counsel did not have actual notice of the Commonwealth’s intention to
introduce the KRE 404(b) evidence at trial. Instead, the Commonwealth
announced its intent to introduce the evidence on the first day of trial, and
defense counsel was forced to challenge the admissibility of that evidence on
the spot. No excuse was provided for the failure to properly notify defense
counsel. For these reasons, we hold that the trial court erred in finding that
timely notice had been provided under KRE 404(c) and in failing to continue
the trial or provide “such other remedy ... to avoid unfair prejudice” as
provided in KRE 404(c).
Even if timely notice had been provided in this case, we note that the
prior bad act evidence would be admissible only if relevant for some purpose
other than to prove Miller’s criminal disposition and, even then, only if its
probative value outweighed any undue prejudice. See Bell, 875 S.W.2d at 889-
91. Having reviewed the record and arguments of counsel, we conclude that
evidence of the April 2016 incident was not relevant for any other purpose than
to prove Miller’s criminal disposition, and, as such, should not have been
admitted under KRE 404(b).
At trial, the Commonwealth only argued that the April 2016 incident was
not evidence of a bad act. Before this Court, the Commonwealth makes the
same argument. It also argues that evidence of the April 2016 incident, in
28
which Miller showed up to the Godby home with a gun, is relevant because it
made it more probable that Miller showed up to the house in August 2016 with
a gun. This is important, the Commonwealth argues, because the defense
repeatedly implied that Godby and Hunt were lying about the August 2016
shooting incident.
However, this is exactly the type of propensity evidence that KRE 404
prohibits. We have previously explained, “The purpose of KRE 404(b) ‘is to
prohibit unfair inferences against a defendant’ by excluding ‘evidence of other
crimes, wrongs, or acts ... to prove the character of a person in order to show
action in conformity therewith.” Conrad v. Commonwealth, 534 S.W.3d 779,
781 (Ky. 2017) (quoting Anderson v. Commonwealth, 231 S.W.3d 117, 120 (Ky.
2007); KRE 404(b)). Here, the Commonwealth only argues that the evidence
was relevant to show that because Miller had previously appeared at Godby’s
house with a gun, it is more likely that he did that same act again on August
18, 2016. In other words, the relevance of this evidence is to show that Miller
acted in conformity with his prior bad behavior. This is improper character
evidence.
The Commonwealth did not contest defense counsel’s assertion that
identity was not at issue in the case, and there was no dispute that Miller and
Godby knew each other prior to August 2016. Even if we were to view this as
an argument that the April 2016 incident was relevant to show Miller’s plan or
29
intent,11 as referenced in KRE 404(b)(1), the facts available in the record do not
support either theory. In April 2016, Miller brought a holstered handgun to
Godby’s home and never removed it from its holster. He asked if Godby was
there, and left after being told that Godby was not home. Approximately four
months passed without incident. Then, in August 2016, Miller arrived at
Godby’s home with a shotgun, which he held as though he were ready to fire it,
and asked where Godby was before proceeding into the home. At trial, the
Commonwealth conceded that it was not using the April 2016 incident to prove
that the same gun was used in both incidents. Thus, the facts surrounding the
April 2016 incident are not similar enough to the facts of the August 2016
shooting to demonstrate plan or intent. Under these circumstances, we cannot
say that the April 2016 incident demonstrates Miller’s plan or intent to return
nearly four months later with a shotgun to confront Godby, nor we can say it is
relevant for any other legitimate purpose. Furthermore, we reiterate that the
Commonwealth did not present this argument to the trial court or this Court.
As the Commonwealth admits, the April 2016 incident tended to show
that Miller acted in conformity with that prior bad behavior when he arrived at
the Godby home with a gun in August 2016. Based on the limited facts
available to us in the record, we cannot say it was relevant for any other
11 The Commonwealth did not present this argument to the trial court or this
Court. However, this Court may affirm a trial court’s ruling for any reason supported
by the record, even if not argued by the parties. See Fischer v. Fischer, 197 S.W.3d 98,
103 (Ky. 2006). Thus, we consider these additional arguments, and though we
ultimately find them unconvincing, we felt compelled to discuss them in this opinion.
30
legitimate purpose, nor was it inextricably intertwined with other evidence
essential to the case. Rather, it was evidence of a prior bad act, used to show
action in conformity with that prior bad act. Accordingly, we hold that the trial
court abused its discretion in permitting testimony about the April 2016
incident.
The above referenced error was preserved by defense counsel’s repeated
objections.12 However, we find that error to be harmless. “A preserved, non-
constitutional error is harmless ‘if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the error.”
Crossland v. Commonwealth, 291 S.W.3d 223, 233 (Ky. 2009) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). However, “[t]he inquiry
cannot be merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error itself
had substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.” Id. (quoting Kotteakos, 328 U.S. at 765) (internal quotation
marks omitted). With this standard in mind, we have repeatedly found the
erroneous admission of a prior bad act to be harmless when the other evidence
of guilt is significant or overwhelming. See, e.g., Baumia v. Commonwealth, 402
12 Though defense counsel did not object to Godby’s brief testimony about the
April 2016 incident, he did object to Hunt’s testimony about that incident. We also
note that the Commonwealth does not argue this issue was unpreserved.
31
S.W.3d 530, 544 (Ky. 2013); King v. Commonwealth, 276 S.W.3d 270, 275-76
(Ky. 2009); Taylor v. Commonwealth, 276 S.W.3d 800, 811 (Ky. 2008).
In the present case, the jury heard testimony about the initial
confrontation between Miller and Godby, during which Miller retrieved a gun.
They also heard about the heated “come get it” messages that the two men
exchanged. Ben testified as to how Miller approached the Godby home in
August 2016, carrying a loaded shotgun as though he were ready to fire it and
walking past Ben into the home, without an explicit or implicit invitation. The
jury also heard from Godby that Miller was uninvited and unwanted in the
home. When Miller entered the home, he pounded on and kicked Godby’s
bedroom door. He yelled at Godby to come out, cursed, and stated “I got you
now.” Simply put, the evidence that Miller knowingly entered the home
unlawfully and with the intent to commit a crime (i.e., threaten or harm Godby)
was overwhelming. Furthermore, the Commonwealth did not discuss the April
2016 incident during its closing argument, or in other words, did not
emphasize that incident to the jury. Given the substantial evidence against
Miller, we do not believe that the jury’s verdict would have changed if the
evidence had not been admitted or if Miller had sufficient notice and adequate
time to prepare to challenge the testimony at trial. Under these circumstances, .
we cannot say that the testimony about the April 2016 incident substantially
influenced the outcome of Miller’s case. Accordingly, though this “bad acts”
evidence was improperly admitted, this error was harmless and does not
warrant reversal.
32
Finding no reversible error, we hereby affirm Miller’s conviction for first-
degree burglary.
CONCLUSION
For the reasons set forth above, we hereby reverse in part and affirm in
part the judgment of the Pulaski Circuit Court. We remand this matter to the
Pulaski Circuit Court to vacate the judgment on count three of the indictment
and for further proceedings consistent with this opinion.
Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.
All concur. Lambert, J., not sitting.
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
33