Chumbler v. Commonwealth ( 1995 )

LEIBSON, Justice.

In a joint trial, Michael Kariakis, his wife, Holly Kariakis, and Charles Chumbler were convicted of crimes resulting in the murder of Nelda Chumbler, Charles Chumbler’s wife. Michael was convicted of murdering Nelda, and Holly and Charles were convicted of murder by complicity. Michael and Charles were sentenced to life without parole for 25 years and Holly was sentenced to life in prison.

Nelda and Charles were school teachers in Florida. Charles was originally from Kentucky. During December, 1990, Nelda and Charles visited Charles’s family in Kentucky. On December 27, around 4:00 P.M., Nelda was shot by a high-velocity weapon, such as a hunting rifle, while feeding the horses on Charles’s brother’s horse lot. The murder weapon was not recovered. Charles and his four-year old grandson were with Nelda at the time. There were no other eye witnesses.

At first the police believed Nelda’s death was caused by a hunter’s stray bullet. Approximately a week after Nelda’s death, the police changed their theory and believed Nelda was killed by a shooter in a nearby shed.

The Commonwealth’s theory of the case was that Michael shot Nelda from the shed and Holly and Charles conspired in the murder. The motive was to obtain the proceeds from Nelda’s insurance: Charles was the beneficiary of his wife’s retirement benefits as well as her $35,000 life insurance policy which increased to $70,000 if she died of an accident. Nelda and Charles married on November 20,1987, and executed an antenuptial agreement that day which listed her assets at $200,000 and his assets at $500 and which prevented Charles from inheriting Nelda’s estate.

Michael and Charles met in 1979 when Michael, who was 16 at the time, worked stripping tobacco on Charles’s farm in the Paducah area. Evidence was presented at trial to allow the jury to infer that Charles and Michael had a homosexual relationship, which Michael and Charles denied. Charles characterized their relationship as a “deep friendship” wherein Charles acted as a foster father to Michael. Charles regularly gave Michael money, bought things for him, and made restitution for bad checks written by Michael and one of Michael’s ex-wives. In large part because of the money flowing from Charles to Michael, Charles declared bankruptcy in 1987 and drained much of Nelda’s finances after marrying her.

Michael and Holly met in November, 1988. Michael moved to Virginia, where Holly lived, and the two married in April, 1989. In February, 1990, Michael and Holly moved to Palm Harbor, Florida. Holly first met Charles in June, 1989, when he visited Holly and Michael in Virginia, and Holly testified that she met Charles two additional times after that in Florida.

Michael and Holly planned on taking a trip over the 1990 Christmas holiday. On December 26,1990, after picking up and cashing Holly’s paycheck, Holly and Michael drove to a parking lot where Michael had arranged to meet a gun dealer to buy a gun on which Michael had previously placed a deposit. Holly gave Michael $100 to $200, which Michael used towards the $700 purchase price of a unique, custom-built, unregistered .270 caliber rifle with a scope. Michael testified he bought the rifle for Charles to give to Perri Mathis, Charles’s adult daughter, as a Christmas present. Holly testified that Michael told her Charles would probably buy the gun from him and that Michael had previously bought guns as investments. Charles testified that he did not ask Michael to buy a gun for him to give to Perri and that Michael never told him he bought it.

After purchasing the gun, Holly and Michael left on their trip. They ended up driving to Paducah, arriving about 1:00 P.M. on December 27. They left the next morning to return to Florida. While in Paducah, the rifle Michael had purchased in Florida was removed from the back seat of their car. There was no sign of forced entry. The rifle has not been found.

The trial took 18 days and the transcript of evidence is 29 volumes. All three defendants testified and denied responsibility for the shooting and claimed it was a hunting accident. The three defendants raise a great many issues and sub-issues on appeal. Some issues are common to all the defendants, others are raised only by one or two defendants. Many of the issues or sub-issues were not properly preserved for appellate review. For the reasons to be stated, we reverse and remand as to all three defendants.

I. SEXUAL EVIDENCE

Both before and at trial, Michael and Charles objected to the introduction of evidence regarding their sexual behavior, preferences or orientation. They suggested that the Commonwealth could prove a “close relationship” between the defendants without “crossing the line into proof of homosexuality.” Charles offered to stipulate to a “strong relationship” between Michael and Charles.

Charles and Michael claim that evidence regarding their sexuality was irrelevant or, if relevant, should have been excluded because the prejudicial nature of the evidence outweighed the probative value. The Commonwealth responds that proof of their homosexual relationship was relevant to establish motive for Nelda’s murder and that the evidence was not unduly prejudicial.

Although no Kentucky cases specifically address the introduction of evidence of homosexuality, such evidence may be analogized to evidence of an extramarital affair. In Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988), we reversed in part because of the admission of evidence of an extramarital affair which had ended twenty-one months pri- or to the murder and lacked any connection to the crime. This Court has held that evidence of extramarital affairs is irrelevant and error in a number of cases. Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977); Pruitt v. Commonwealth, Ky., 487 S.W.2d 940 (1972); Brown v. Commonwealth, Ky., 275 S.W.2d 928 (1955); Acres v. Commonwealth, Ky., 259 S.W.2d 38 (1953).

Evidence of extramarital sexual activity should be admitted or excluded without regard to the gender of the parties and without regard to whether homosexual or heterosexual activity is involved. As we stated in Smith v. Commonwealth, 93-SC-724-MR, rendered 6/8/95, 904 S.W.2d 220, where the majority found that the defendant established sufficient connection to the charged crime to permit evidence of an extramarital lesbian affair, “evidence of marital infidelity which lacks legitimate connection to the crime charged amounts to an attack upon the defendant’s character and results in prejudicial error.” Id. at 5, 904 S.W.2d at 222. So too, evidence of the sexual behavior of the defendants which lacks legitimate connection to the crime charged is irrelevant and amounts to a smear upon the defendant’s character, resulting in prejudicial error.

In this case, evidence regarding the relationship between Michael and Charles and the extent of that relationship was properly admitted. Charles’s offer to stipulate to a “close relationship” between Michael and Charles would be unfair to the Commonwealth. A defendant is not entitled to stipulate away the parts of the case which he does not want the jury to see. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). The relationship between Charles and Michael was at the heart of the Commonwealth’s theory of a conspiracy between Charles and Michael to murder Nelda. Evidence of the love between Michael and Charles, whether that love was emotional or physical or both, was necessary to sufficiently establish a motive for Charles to conspire to murder a wife he claimed to love and for Michael to murder Charles’s wife.

However, the Commonwealth presented evidence of Charles’s and Michael’s sexual behavior far in excess of what was relevant to prove their relationship and establish motive. The prosecutor began his opening statement by telling the jury that Charles came from a good family in McCracken County, “[b]ut Charles is different. Charles was gay.” He continued by saying, “we will prove that Charles enjoyed the company of young boys.” The prosecutor also stated in his opening that Charles married his second wife in order to become the foster father of a young man with whom he was sexually involved.

Charles’s first wife testified that during their marriage from 1964 to 1970 (twenty years prior to Nelda’s death) Charles spent time with more than one young man. She further testified to an incident where Charles prostituted her so that Charles could have sex with a young man. The prosecutor mentioned this in his opening, and in his summation he stated:

Charles then used Donna to get a young man that he wanted to have sex with. He sold Donna’s body for his own pleasure. Sold? Traded would be a better word. He allowed the young man to have sex with Donna, so that the young man would agree to have sex with him.

One of Charles’s co-workers testified that while Charles was staying at her home she washed his clothes. When asked if she found anything unusual in the wash, she testified that she found women’s underwear and that Charles wore women’s nylon panties.

During cross-examination of Charles, the prosecutor introduced pictures of “sexual toys”¹ found under a washtub in the garden of Nelda’s and Charles’s home. The jury was shown three slides of the “toys” blown up to 3½ — 4 feet wide by 4 feet tall. Charles did not open the door to introduction of this evidence by introducing evidence of his reputation for peacefulness and truthfulness in the community as claimed by the Commonwealth. The evidence regarding the dildos had nothing to do with truthfulness; it did not show a particular wrongful act; it didn’t even show that Charles used the dildos with Michael or that Charles was homosexual. The pictures of the dildos were “not legitimate impeachment, [but] serv[ed] only to inflame the jury against” Charles. Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 279 (1992) (Combs, J., dissenting).

During his closing argument, the prosecutor revisited the testimony about Charles’s homosexuality and preference for young boys. He referred to Charles’s use of dildos in his relationships and keeping a steady stream of young men coming through the house during his first marriage. Although the prosecutor stated, “being gay is no crime,” he then said, “it’s the way Charles Chumbler handled it that made it murder.” He referred to Charles’s homosexuality as “satisfying his own perverted needs” and said Charles’s “desires grew stronger and stronger and kinkier and kinkier. [A witness] told you that what he really enjoyed in the sexual use was the use of these artificial items.”

The Commonwealth argues, and we agree, that proof considerations are no different than if Charles was having an affair with a woman. In Davis v. Commonwealth, Ky., 795 S.W.2d 942 (1990), testimony about an extra-marital affair, which was connected to the charged crime, was allowed. Likewise, evidence regarding Charles’s and Michael’s relationship and regarding their “love of a lifetime” was connected to the crime charged and was relevant to establish motive.

However, testimony about and references to Charles’s and Michael’s relationships with third parties and evidence of the defendants’ sexual habits unrelated to the crime charged was improper smear evidence irrelevant to their motive to murder Nelda. Such evidence did not tend to make the existence of a fact that is of consequence to the determination of the action more or less probable and had the effect of poisoning the atmosphere of the trial, rendering it impossible for the defendants to have had a fair trial.

II. EVIDENCE OF COLLATERAL CRIMINAL ACTIVITY AND BAD CHARACTER

Charles and Michael both objected to the introduction of a variety of evidence of collateral criminal activity, bad acts, and bad character. Generally, evidence of crimes other than that charged, is not admissible to prove that an accused is a person of criminal disposition. KRE 404(b); Lawson, Kentucky Evidence Law Handbook, 3rd Ed., Sec. 2.25 (1993). Evidence of other crimes or wrongful acts may be introduced as an exception to the rule to show proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(1). To be admissible under any of these exceptions, the acts must be relevant for some purpose other than to prove criminal predisposition; sufficiently probative to warrant introduction; and the probative value must outweigh the potential for undue prejudice to the accused. Clark v. Commonwealth, Ky., 833 S.W.2d 793, 795 (1990).

Evidence that Charles committed bankruptcy fraud in filling out a bankruptcy petition was introduced. Despite a motion in limine which was granted prohibiting evidence of the uncharged crime of bigamy, evidence that Michael was a bigamist was introduced. These acts had little or no bearing on the charges for which the men were being tried, yet they presented the men as being of criminal disposition. Evidence of bigamy was not necessary to show Michael’s relation to a witness who was Michael’s “ex-wife,” as claimed by the Commonwealth. In conjunction with the other errors, we find these to be reversible errors as well.

Evidence that Michael stole a variety of items from Nelda’s and Charles’s home, including taking a table and chairs the day after Nelda and Charles left for Kentucky, was relevant evidence of the relationship between the two men and of Michael’s ongoing need for money and the lengths to which he would go to obtain it. Evidence of thefts from Nelda’s and Charles’s home which cannot be tied to Michael are irrelevant.

Witnesses testified that Michael fantasized he was a character in a day-time soap opera who was portrayed as a killer for a mythical Greek society. Four witnesses testified that Michael had stated he was a “hit man” and that he talked about “icing” people and making it look like an accident. This evidence was properly allowed to show intent, identity, and the absence of accident.

A police detective read parts of a letter from Michael to Charles in which Michael said, “I beg that you do still have feeling for me, because I need you. Always have. I just wish it’d turn out better for us. Maybe it will when I am out in a few months or so. Please wait.” When defense counsel objected, the prosecutor claimed that getting out could mean out of jail, school, or the navy and the objection was overruled. The prosecutor later said the letter indicated that Michael was probably in jail at the time he wrote it. Although it is “reversible error to call to the attention of the jury information that tends to show another crime had been committed which is independent of, and unconnected with, the one for which the accused is on trial,” Payne v. Commonwealth, Ky., 509 S.W.2d 264, 265 (1979), the error in this case was harmless because Michael had previously elicited testimony from his mother, without objection, about his incarceration.

We do not address the additional alleged errors regarding collateral criminal activity or bad acts because they were either unpre-served or inadequately preserved for appellate review. On retrial defense counsel should object if they believe error has occurred to allow the trial court to provide appropriate relief.

III. CIGARETTE BUTT

The prosecutor claimed in his opening statement that Michael Kariakis left a “virtual signature” inside the shed by leaving a cigarette butt on the floor. The butt was not collected until a week after Nelda’s death, and, according to Michael, may have been left there before or after Nelda’s death. The butt was tested and found to have been smoked by a type A secretor. Michael is a type A secretor. The brand of the cigarette butt was narrowed down to twelve possibilities, one of which possibilities Michael smoked. In closing, the prosecutor multiplied the percentage of the population who are type A secretors by the percentage of the American public who smoke by the nationwide market share of the type of cigarette Michael smoked to arrive at the figure of .2 percent or 2 in 1000: “And that’s the odds that Michael Kariakis was standing there, 2 in 1000 ... would’ve flipped down a Newport cigarette.”

The calculations were completely unfounded and in error. Although there was no objection at trial, this was a “palpable error” affecting Michael’s “substantial rights” resulting in “manifest injustice.” RCr 10.26. The prosecutor referred to the butt as Michael’s “signature” and the statistical “evidence” compounded that view. The statistical calculations rival a polygraph in their unreliability and propensity to mislead and may have convinced jurors of modest analytical ability that no one but Michael could have committed the crime.

IV. PROSECUTORIAL MISCONDUCT

All three defendants allege a variety of prosecutorial misrepresentations and prose-cutorial misconduct denied them a fair trial. Many of the alleged instances of prosecutorial misconduct are unpreserved. One of the most egregious instances of unpreserved prosecutorial misconduct came during the Commonwealth’s closing argument. A defense theory of the case was that, because of the damage to Nelda and the possibility the bullet was deflected when going through a fence, the shot which killed Nelda did not come from the shed. During his closing argument, the prosecutor stated:

You can shoot that fence all day every day for the next week and you’re going to go straight through it with a .270 at 24 yards ... I didn’t take the jury out to the shooting range and have a little shooting. I went myself, so I know exactly what I’m talking about.

As we are reversing on other grounds, we need not determine whether the unpreserved allegations of prosecutorial misconduct rise to the level of palpable error required by RCr 10.26, and we will address only the preserved allegations of prosecutorial misconduct.

During questioning by the prosecutor, Charles’s mother, Dorothy Chumbler, testified that she couldn’t remember Perri, Charles’s daughter, being at her house the evening after Nelda was killed and she didn’t remember saying anything to Perri about Michael. At the ensuing bench conference, the prosecutor said he intended to impeach Mrs. Chumbler by calling Perri and that the rules of impeachment required him to ask Mrs. Chumbler if she remembered saying, “That damn Michael, I know he’s involved.” When asked the relevance of that statement, the prosecutor said it was relevant because “It was her opinion that Michael did this.” After objection was overruled, Mrs. Chum-bler denied saying, “That damn Michael, that damn Michael, I know he’s involved in this.”

Before the testimony of both Perri Mathis and Bill Mathis, Pern’s husband, defense counsel objected to the prosecutor asking any questions regarding the witnesses’ belief that Michael or Charles were involved in the murder. The trial court overruled both the objections. Perri testified, over yet another objection, “[Mrs. Chumbler] said, ‘That damn Michael,’ that she knew he had something to do with this.” The Commonwealth now claims that although the testimony was inadmissible as an opinion of Michael’s guilt, it was admissible to impeach Mrs. Chumbler’s credibility regarding her testimony about the length of time Charles was gone from the house on the day of the murder and about a telephone call Charles received that day.

In Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), it was the witness’s opinion of the defendant’s guilt that provided the motive for him to come forward and, in such circumstances, the “witness bias ... was relevant to the credibility of his testimony.” Although a witness in a criminal case may be impeached by contradictory evidence, “[s]uch evidence is not admissible for that purpose unless it pertains to a material matter.” Nugent v. Commonwealth, Ky., 639 S.W.2d 761, 764 (1982). Mrs. Chumbler could not remember whether her granddaughter was at the house during the time about which she was testifying; this is not a material matter.

The issue of guilt or innocence is one for the jury to determine, and an opinion of a witness which intrudes on this function is not admissible, even through a route which is, at best ‘back door’ in nature. Id. at 764.

At trial, the Commonwealth claimed that the statement was relevant because it was Mrs. Chumbler’s “opinion that Michael did this.” While it may be relevant, it is not necessarily admissible. “[W]here the value of evidence for a legitimate purpose is slight and the jury’s probable misuse of the evidence for an incompetent purpose is great, the evidence may be excluded altogether.” Id. The trial court overruled objections to whether Perri and Bill Mathis could be asked their opinion of Michael’s guilt before such questions were asked, and thus before any impeachment purpose was given. While we do not need to determine whether the admission of Mrs. Chumbler’s opinion, through both her own and Perri Mathis’s testimony, that Michael was involved was reversible error, we note for retrial that Mrs. Chumbler’s opinion of Michael’s guilt is of doubtful relevance.

Michael Kariakis also maintains that evidence of flight from Florida police officers after he was involved in a car accident in Florida was improper. However, the “flight of a person after the commission of a crime and before his arrest is ... a circumstance to be considered” and is “some evidence of a sense of guilt.” Hamblin v. Commonwealth, Ky., 500 S.W.2d 73 (1973). This was not error.

Holly and Michael both claim that the identification of their car by witnesses was error. We are aware of no cases “requiring a line-up of similar inanimate objects before identification is permitted.” Rackley v. Commonwealth, Ky., 674 S.W.2d 512 (1984). Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), both involved identifications of humans and do not require a lineup of automobiles or 100% certainty before a witness may testify. The credibility and weight of the witnesses’ car identifications was properly an issue for the jury to determine.

A police detective’s testimony that he told Charles’s parents he was a good detective and would be fair in his investigation carried insignificant weight in this lengthy trial and caused no substantial prejudice.

Three photographs and corresponding slides of Nelda’s body which were shown to the jury had a purpose, and they were not inadmissible merely because they were gruesome. Copley v. Commonwealth, Ky., 854 S.W.2d 748 (1993). There was no error in admitting the photographs.

Prior to trial, Charles moved to exclude certain out-of-court statements made by Michael and Holly because their statements would be inadmissible hearsay against Charles “unless and until” Holly and Michael testified. Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In his brief, Charles claims the trial court erred in allowing testimony about statements Michael made to his mother and to one of his ex-wives. Michael told his mother Charles was going to marry a Florida schoolteacher and that Michael was going to waste her. He told his ex-wife that Nelda had a lot of money and that if they played their cards right, they would “get a house out of this.” The Commonwealth’s claim that Bruton does not apply because all the defendants testified is mistaken. On retrial, such testimony regarding Michael’s statements should not be admitted until after Michael testifies because the statements implicate Charles. Bruton applies.

V. FOOTPRINT EVIDENCE

Prior to trial, Holly moved to exclude all footprint evidence due to a missing videotape of the crime scene which was lost while in the exclusive control of the Commonwealth. Photographs of the footprints were introduced and numerous witnesses testified regarding the placement of the footprints and who could have made the prints. Additionally, the trial court provided a missing evidence instruction which required that the jury “infer that the videotape and sound recording would be, if available, adverse to the Commonwealth and favorable to the defendants.” There was no error due to the missing videotape in admitting footprint evidence.

In addition to the preserved complaint, all three defendants now claim the footprint evidence should have been excluded because the footprints were never connected to Michael, therefore the evidence was not relevant. As we are reversing on other grounds, we need not determine whether admission of the footprint evidence was palpable error. Assuming the footprint evidence will again be introduced on retrial, this issue may be raised before the trial court at that time.

VI. HEARSAY EVIDENCE

The next issue presented by Charles involves alleged improper hearsay evidence. Many of the complained of instances are not preserved. At other times, objections were sustained and either no further relief was requested or an admonition was given and no additional relief was requested. These complaints are not adequately preserved for review, West v. Commonwealth, Ky., 780 S.W.2d 600 (1989), and we will not address them.

VII. RIGHT TO PRESENT A DEFENSE

Charles argues that he was denied his right to present a defense when the trial court sustained the Commonwealth’s objections and excluded certain evidence. We disagree.

The trial court correctly ruled that a gun shop owner was not an expert on human wounds and properly excluded his testimony regarding Nelda’s bullet wound. If any of the additional complaints were error, they were harmless, as some testimony to the same effect as the excluded testimony was allowed in each instance.

VIII.PAROLE ELIGIBILITY

At the sentencing phase, pursuant to a Commonwealth request to take judicial notice, the trial judge informed the jury that a sentence from 20 years to life in prison meant parole eligibility of 12 years. During his sentencing phase closing argument, the prosecutor told the jury to sentence Charles to life without parole for 25 years so he wouldn’t be eligible for parole for 25 years.

Charles’s case was tried under KRS 532.025 which does not allow the jury to hear information on parole eligibility. Also, KRS 532.055, which allows the Commonwealth to offer evidence regarding minimum parole eligibility, specifically states it shall not apply to sentencing hearings provided for in KRS 532.025. Whether or not this error was properly preserved for review, on retrial this case should be tried in accord with the statutory guidelines regarding parole eligibility.

IX.IMPROPER VERDICT FORM

Charles further complains that the life without parole verdict form used at his sentencing did not allow the jury to find the aggravating circumstance without fixing the aggravated penalty. This issue was not preserved, but on retrial, the trial court should use a different verdict form.

Form Verdict No. 1 fixes Charles’s punishment at “a term of_years (20 or more).” Form verdict No. 2 fixes his punishment at life. Form Verdict No. 3 states:

We, the jury, find beyond a reasonable doubt that the following aggravating circumstance exists in this case:

The Defendant committed the offense of Complicity to Murder ... for the purpose of receiving money ... or for other profit....

We fix the Defendant’s punishment for Complicity to Murder Nelda Chumbler at confinement ... for life without benefit of ... parole until he has served a minimum of 25 years of his sentence.

The verdict form is most naturally read to indicate that, if the jury finds the aggravating circumstance beyond a reasonable doubt, they must fix Charles’s punishment at LWOP for 25 years rather than merely placing him in the class eligible for LWOP for 25 years. This form is improper as it makes it difficult for the juiy to find the aggravating circumstance without fixing the aggravated penalty. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 545 (1988). The final portion of the life without parole verdict form on retrial should read: “We fix the Defendant’s punishment for [Complicity to Murder Nelda Chumbler] at_(not to exceed life without parole for 25 years).”

X. DIRECTED VERDICT FOR HOLLY

Holly moved for a directed verdict of acquittal because “on the mental aspect or emotional state element of the case, there is no proof’ and because the Commonwealth did not prove that any act of assistance took place in Kentucky. The evidence against Holly viewed in the light most favorable to the Commonwealth is that 1) Holly gave Michael money to buy the murder weapon; 2) she lied to her employer about where she was going when she took the trip to Kentucky; 3) she went with Michael to buy gloves in Paducah before the murder; 4) she was present in the car near the murder scene and assisted Michael by either driving or helping him get the car out of the snow when leaving the murder scene; 5) she lied to police about being in Paducah; and 6) she benefited from the murder when Michael received a car and cash from Charles after the murder.

Under KRS 500.060, Holly may be convicted under Kentucky law of an offense committed by her own conduct or the conduct of another for which she is legally accountable when either the conduct or the result which is an element of the offense occurs within the state. Because Nelda’s death (the result) occurred in Kentucky, Holly’s conduct outside Kentucky may be considered.

Although there is no clear proof, such as a confession, that Holly specifically intended to promote or facilitate Nelda’s murder by providing Michael with money to buy the gun or by helping him leave the scene of the crime, the jury could reasonably infer from her actions that she did intend to promote Nelda’s murder. Likewise, the jury could reasonably believe that Holly aided Michael knowing that he would kill Nelda but without intending to contribute to Nelda’s murder—in which case she would be guilty of criminal facilitation.

XI. FACILITATION INSTRUCTION FOR HOLLY

Holly tendered an instruction on criminal facilitation which was refused. A person is guilty of criminal facilitation under KRS 506.080 when,

acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.

A person is guilty of complicity and liable for the conduct of another under KRS 502.020 when, “with the intention of promoting or facilitating the commission of the offense,” she “[a]ids, counsels, or attempts to aid [another] in planning or committing the offense....”

The Commonwealth argues that, since criminal facilitation requires that the person act with knowledge that another person is committing or intends to commit a crime and since Holly never acknowledged she knew of Michael’s intention to kill Nelda, Holly was not entitled to an instruction on facilitation. This contention is patently erroneous because, if there was insufficient evidence to prove Holly knowingly provided Michael means or opportunity to commit the crime, a fortiori there is insufficient evidence to prove she knowingly aided Michael “with the intention of promoting or facilitating” the murder, and thus Holly could not be found guilty of complicity under KRS 502.020. Smith v. Commonwealth, Ky., 722 S.W.2d 892 (1987), does not apply to this case because evidence sufficient to support a facilitation instruction was not present in that case.

Holly did not have to admit she knew that Michael intended to kill Nelda to be entitled to a facilitation instruction. In Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977), we noted that facilitation was a lesser-inelud-ed offense of complicity. Criminal facilitation has the same elements as complicity except that the state of mind required for its facilitation is less culpable than the state of mind required for complicity. The standard we set forth in Luttrell to distinguish between criminal facilitation and complicity was:

[The defendant] would be guilty of criminal facilitation if he furnished [his co-defendant] with the means of committing a crime knowing that he would use it to commit a crime but without intention to promote or contribute to its fruition. He is guilty of the substantive offense by complicity if he furnished the means of committing the crime intending to aid in the commission of the crime. Id. at 79. (Emphasis in original.)

The principal difference between facilitation and complicity is the state of mind of the defendant. To be convicted of complicity, the jury must find that Holly intended that Nelda’s murder occur; to be convicted of facilitation, the jury must find only that Holly knew Michael was going to commit a crime.

Holly’s knowledge (necessary to convict her of facilitation) or intent (necessary to convict her of complicity) must both be inferred from Holly’s conduct. A reasonable juror could have doubted Holly was guilty of murder by complicity but concluded she was guilty of the lesser offense of facilitation. Failure to provide a facilitation instruction was error, and we reverse Holly’s conviction on this basis.

XII.IMPROPER COMPLICITY INSTRUCTION

Holly next argues that the complicity instruction presented to the jury was improper. Although Holly tendered an alternative instruction, she did not make a specific objection to the complicity instruction given by the court and did not state specifically the grounds on which she believed the court’s complicity instruction was improper.

At the time of trial in this case, RCr 9.54(2) provided that a party could not assign error to instructions unless the party

makes specific objection to the giving or the failure to give an instruction before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.

Thus, this issue is not adequately preserved for review and we will not address it.

XIII.SEPARATE TRIAL

Holly Kariakis moved for a separate trial claiming that she would be “hopelessly, unfairly and unduly prejudiced” by the introduction of evidence against Michael and Charles and that she would be improperly prejudiced by having any association with the other defendants.

Much of the evidence which Holly claims inflamed the jury and prejudiced her due to her association with the other defendants poisoned the whole atmosphere of the trial. That evidence of the defendants’ sexual behavior in general, sexual relations with third parties, the pictures of the “love toys,” and some of the bad acts of Michael and Charles must be excluded on retrial. If Holly again moves for a separate trial, the trial court should make the determination regarding severance at that time based on the evidence that will be admitted in the next trial.

XIV.SUPPRESSION OF EVIDENCE OBTAINED DURING SEARCH

Holly next argues that the statements she made during a search of her home in Florida and receipts from Kentucky transactions which were seized at that time should have been excluded because there was no probable cause for a search warrant and the execution of the warrant was unreasonable. The trial court found that the warrant was based on probable cause and the search did not exceed the parameters of the warrant. That decision is supported by substantial evidence and therefore is conclusive. RCr 9.78.

For the foregoing reasons, we reverse and remand the convictions of Charles Chumbler and Holly and Michael KariaMs with directions that any retrial of this case shall be conducted in conformity with this opinion.

STEPHENS, C.J., and LAMBERT, LEIBSON and STUMBO, JJ., concur. WINTERSHEIMER, J., dissents by separate opinion in which REYNOLDS, J., joins. FUQUA, J., not sitting.

1 . The “sexual toys” consisted of three dildos, one of which was black, a jar of Vaseline, latex gloves, and condoms.