John Tabor v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
2019-SC-000233-MR
JOHN TABOR APPELLANT
ON APPEAL FROM FRANKLIN CIRCUIT COURT
V. HONORABLE THOMAS D. WINGATE, JUDGE
NOS. 17-CR-00121 AND 17-CR-00178
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Denton “DJ” Bixler was the “on again-off again” boyfriend of John
Tabor’s daughter, Jennifer, and was the biological father to one of her children.
On March 20, 2017, Tabor shot and killed DJ on the street in front of Tabor’s
home. Following a three-day trial, Tabor was found guilty of murder1 and
wanton endangerment in the first degree.2 Prior to sentencing, Tabor moved
the trial court to exempt him from serving eighty-five percent of his sentence
pursuant to the domestic violence exemption contained in KRS 439.4301(5).
1 Kentucky Revised Statutes (KRS) 507.020, a Capital offense.
2 KRS 508.060, a Class D felony.
The trial court entered a written order denying the requested relief after
convening a hearing on the motion. Tabor was subsequently sentenced to an
aggregate term of twenty years’ imprisonment. He now appeals, challenging
only the trial court’s ruling on the applicability of the domestic violence
exemption. We affirm.
On the day of the shooting, Jennifer had driven her mother home from
work. While she was at her parents’ house, DJ arrived and wanted to speak
with her, but Jennifer was on the phone. Tabor came down the long set of
stairs from his home to the street to bring shoes and socks for his
grandchildren who were waiting in Jennifer’s car. Tabor believed there was
tension between Jennifer and DJ. DJ drove away but returned a very short
time later and began arguing with Jennifer over whether she was seeing
someone else. The pair remained in the middle of the street. Jennifer
described the argument as typical of their relationship and affirmatively stated
DJ did not touch her or threaten her in any way.
During the argument, Tabor emerged from the house and told Jennifer
and DJ to not argue in front of his house. Tabor and DJ exchanged a few
harsh words filled with expletives and derogatory racial slurs. Tabor went back
inside, only to reappear seconds later armed with a pistol. He again traversed
the long set of stairs down the hill and confronted DJ, threatening to kill him.
DJ asked Tabor if he was going to shoot him in front of his children, backing
up with his hands in the air. Jennifer stepped between the two men and DJ
moved her aside twice. As she was moved the second time, Tabor fired his
pistol, missing Jennifer by less than a foot and striking DJ in the face.
Jennifer caught DJ before he hit the ground; he died before emergency services
arrived. Tabor returned to his house after the shooting. During a subsequent
interview with police, Tabor did not deny firing the fatal shot and conceded he
did not observe DJ with a weapon.
At trial, the foregoing facts were undisputed. Further testimony revealed
Tabor had previously contacted police on numerous occasions regarding his
suspicions DJ was selling drugs and abusing Jennifer and his grandchildren.
He stated he had seen drug transactions being conducted and had observed
bruising on Jennifer’s legs and ribs. Tabor stated his grandson had informed
him DJ hit his mother. He believed Jennifer was afraid of DJ because she had
obtained a taser and would often take steps to make it appear she was not at
home so DJ would not come over. At one point, Tabor indicated to a local
constable that if law enforcement would not do something, he would take
matters into his own hands. However, none of Tabor’s allegations were ever
substantiated.
Testifying in his own defense, Tabor claimed he looked outside on the
day of the shooting and saw DJ in Jennifer’s face, slinging his arms around
wildly and being extremely animated. He believed Jennifer was in fear of DJ.
When he went to confront DJ, he did not draw his gun until DJ rushed him.
DJ’s actions led Tabor to believe he was armed. Tabor stated when DJ pushed
Jennifer the second time, he lunged, causing Tabor to flinch and fire the gun.
He was not expecting the gun to fire and did not intend to shoot DJ. The jury
ultimately disbelieved Tabor and convicted him of murder and wanton
endangerment, recommending a total sentence of twenty years’ imprisonment.
A hearing was convened on Tabor’s post-conviction motion for
application of the domestic violence exemption. Tabor and his wife were the
only witnesses called at the hearing. Both reiterated their trial testimony, but
neither was able to say Jennifer ever expressed fear of DJ or told them of any
violence perpetrated by him. Neither had witnessed any incidents of domestic
violence. In a lengthy written order, the trial court determined Tabor did not
qualify for the exemption and subsequently sentenced him in conformity with
the jury’s recommendation. Tabor now challenges the trial court’s decision,
believing it to be clearly erroneous.
KRS 439.3401(3)(a) states “[a] violent offender who has been convicted of
a capital offense . . . with a sentence of a term of years . . . shall not be released
on probation or parole until he has served at least eighty-five percent (85%) of
the sentence imposed.” KRS 439.3401(5) contains an exception from the
eighty-five percent rule: “[t]his section shall not apply to a person who has
been determined by a court to have been a victim of domestic violence or abuse
pursuant to KRS 533.060 with regard to the offenses involving the death of the
victim or serious physical injury to the victim.”3 KRS 533.060(1) states
[w]hen a person has been convicted of an offense or has entered a
plea of guilty to an offense classified as a Class A, B, or C felony
and the commission of the offense involved the use of a weapon
from which a shot or projectile may be discharged that is readily
3 The exception permits a defendant to be eligible for parole under the more
lenient provisions of KRS 439.340.
capable of producing death or other serious physical injury, the
person shall not be eligible for probation, shock probation, or
conditional discharge, except when the person establishes that the
person against whom the weapon was used had previously or was
then engaged in an act or acts of domestic violence and abuse as
defined in KRS 403.720 against either the person convicted or a
family member as defined in KRS 403.720 of the person convicted.
If the person convicted claims to be exempt from this statute
because that person was the victim of domestic violence and abuse
as defined in KRS 403.720, the trial judge shall conduct a hearing
and make findings to determine the validity of the claim and
applicability of this exemption. The findings of the court shall be
noted in the final judgment.
Under the plain statutory language, to qualify for application of the
exemption, a defendant “must have been a victim of domestic violence or abuse
and that violence or abuse must also have occurred ‘with regard to’ the crime
committed by the violent offender claiming the exemption.” Gaines v.
Commonwealth, 439 S.W.3d 160, 164 (Ky. 2014). A preponderance of the
evidence standard is utilized for the first prong and we review these evidentiary
determinations by trial courts for clear error. Commonwealth v. Anderson, 934
S.W.2d 276, 278 (Ky. 1996).
With regard to the second prong of the test—whether domestic
violence or abuse endured by a defendant occurred “with regard to
the offenses” committed by that defendant—we have construed the
statutory text to mean that the domestic violence exemption of KRS
439.3401(5) applies only when the domestic violence or abuse was
“involved” in the offense committed by the violent offender. See
Springer v. Commonwealth, 998 S.W.2d 439, 457 (Ky. 1999). In
Commonwealth v. Vincent, 70 S.W.3d 422 (Ky. 2002), we further
explained the evidence must establish “some connection or
relationship between the domestic violence suffered by the
defendant and the underlying offense committed by the
defendant.”[] Id. at 424. We further concluded that “a prior
history of domestic violence between a violent crime victim and the
criminal defendant who perpetrated the violent offense does not, in
and of itself, make the defendant eligible for the parole exemption
of KRS 439.3401(5).”[] Id. at 425.
Gaines, 439 S.W.3d at 165.
At the conclusion of the evidentiary hearing, the trial court found Tabor
had failed to show by a preponderance of the evidence that he “was more likely
than not to have been a victim of domestic violence” or that domestic violence
was “involved” in the offense committed by Tabor. We cannot conclude the
trial court’s findings were clearly erroneous.
During the hearing, Tabor provided nothing more than his suspicions DJ
was abusing Jennifer and an uncorroborated statement attributed to his four-
year-old grandson. He admitted never witnessing any incidents of domestic
violence between DJ and Jennifer. Mrs. Tabor was likewise unable to say
Jennifer had ever told her she was fearful of DJ or that he had abused her. No
one observed physical threats or contact between the pair during the verbal
altercation on the day of the shooting. At trial, Jennifer unequivocally denied
having ever been abused or threatened by DJ, including on the day of his
death. She stated her father was the aggressor prior to the shooting and she
was not in imminent danger or fear of harm before Tabor fatally shot DJ.
Weighing this and other conflicting evidence, the trial court concluded Tabor
did not carry his burden of establishing he or Jennifer were victims of domestic
violence. Although Tabor recounts testimony and evidence he believes
established he and Jennifer were, in fact, victims of domestic violence and
contends the trial court ignored this evidence, as trier of fact, the trial court
has the right to “believe any witness in whole or in part. Webb Transfer Lines,
Inc. v. Taylor, Ky., 439 S.W.2d 88, 95 (1968). The trier of fact may take into
consideration all the circumstances of the case, including the credibility of the
witness. Hayes v. Hayes, Ky., 357 S.W.2d 863, 866 (1962).” Anderson, 934
S.W.2d at 278. Our review of the record reveals the trial court’s ruling was
based on the appropriate preponderance of the evidence standard and was not
clearly erroneous.
Having failed to show he or Jennifer were victims of domestic violence,
Tabor necessarily could not establish the requisite connection between any
domestic violence and his shooting of DJ. His continued recitation of
unsupported suspicions and beliefs is unavailing and simply does not render
the trial court’s decision infirm. Again, the trial court weighed the evidence
and chose to disbelieve Tabor’s self-serving assertions as was its right. There
was no clear error.
For the foregoing reasons, the decision of the Franklin Circuit Court is
AFFIRMED.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General