Mark E. Kelly v. Commonwealth of Kentucky ( 2022 )

RENDERED: OCTOBER 20, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-334-MR
MARK EUGENE KELLY APPELLANT
ON APPEAL FROM MARION CIRCUIT COURT
V. HONORABLE SAMUEL TODD SPALDING, JUDGE
NO. 20-CR-000154
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Mark Eugene Kelly appeals as a matter of right1 from the Marion Circuit
Court judgment sentencing him to twenty-years’ imprisonment for his
convictions of unlawful imprisonment first-degree (three counts), wanton
endangerment first-degree (three counts), and criminal trespass first-degree.
On appeal Kelly raises four claims of error. Having reviewed the record and the
arguments of counsel, we affirm the trial court’s judgment in all respects.
I. Facts and Procedural Background.
On the evening of August 21, 2020, either because of an acute mental
health emergency or as a result of methamphetamine use, Kelly became
increasingly paranoid that he was being surveilled by persons unknown. Kelly
1 Ky. Const. § 110(2)(b).
first locked himself in his own bedroom, then later climbed through his window
to find shelter elsewhere, taking with him his cell phone, his fiancée’s cell
phone, and a gun. Kelly wandered through the night in the area around his
home, and on the morning of August 22 he came to the home of Melissa
Mattingly. Kelly attempted to enter the home but was unsuccessful. Mattingly
was not home at the time but was alerted by her home security system of
Kelly’s presence. Mattingly contacted law enforcement.
After his unsuccessful attempt to enter the Mattingly home, Kelly found
his way to the home of Terry Lee, who was sitting on his front porch with his
11-year-old granddaughter, S.K. Kelly approached the two, gun in hand, and
told them he wanted to contact the FBI or CIA and asked whether anybody was
inside the Lee home. Terry answered in the negative, but Kelly proceeded to
enter the home and ordered Terry and S.K. to go inside with him. Terry
testified he felt he had no choice but to comply given Kelly’s erratic behavior
and possession of the gun.
Once in the home, Kelly locked the doors and took Terry’s and S.K.’s cell
phones. When S.K. asked if she could leave to check on her younger sister,
Kelly told her she could not. After a few minutes, Jon Peter, Terry’s son and
S.K.’s uncle, came to check on S.K. Jon Peter knocked on the door and was
met by Terry who attempted to warn him. However, when Kelly noticed Jon
Peter at the door, he pointed his gun at Jon Peter and ordered him inside the
home. As Kelly pointed his gun at Jon Peter, S.K. came to Jon Peter’s side and
2
Jon Peter pulled S.K. close to him to shield her. Eventually, Kelly told Jon
Peter to put his hands behind his head and to sit on the floor.
Roughly five minutes later, Blake Blandford, S.K.’s father, arrived at the
Lee home and knocked on the door. This time, Blandford saw Kelly, retreated
from the front porch, reached for his pistol, and called for Kelly to let S.K. go.
During this moment, S.K. ran out the front door to her father. Blandford took
S.K. home, left her with his father, S.K.’s other grandfather, and told them to
call law enforcement. Officers arrived at the Lee household in short order,
having already been in the neighborhood looking for the perpetrator of the
attempted break-in at the Mattingly home.
Officers eventually made contact with Kelly and asked him to let Terry
and Jon Peter go. Kelly refused. After this initial interaction, Kelly became
more frantic, waving around the gun with Terry and Jon Peter still in the room
with him. Ultimately, Kentucky State Police troopers were able to convince
Kelly to relinquish his weapon and exit the home. No one was physically
injured during the incident.
Kelly was indicted on one count of first-degree burglary, three counts of
first-degree unlawful imprisonment, and three counts of first-degree wanton
endangerment. After a three-day jury trial, Kelly was convicted of criminal
trespass (in this case, a lesser-included offense of first-degree burglary), three
counts of first-degree unlawful imprisonment, and three counts of first-degree
wanton endangerment. The jury recommended a total sentence of
3
imprisonment of twenty years and the trial court followed the recommendation
of the jury. Kelly now appeals from that judgment.
II. Analysis.
Kelly presents four arguments. First, he contends the trial court erred in
denying his motion for a directed verdict on the counts relating to Terry and
S.K. Second, he argues that his convictions for first-degree wanton
endangerment and first-degree unlawful imprisonment violate the prohibition
on double jeopardy. Third, Kelly claims the trial court improperly allowed
evidence of a prior incident of unlawful imprisonment. Finally, he contends
that statements made by the Commonwealth during sentencing amount to
prosecutorial misconduct. We address each argument in turn.
A. Directed Verdict.
Kelly first argues that the trial court erred in denying his motion for
directed verdict on the charges relating to Terry and S.K. as the evidence
presented was insufficient to establish first-degree wanton endangerment and
first-degree unlawful imprisonment as to those victims. We hold the trial court
did not err.
“If under the evidence as a whole it would not be clearly unreasonable for
a jury to find the defendant guilty, [a defendant] is not entitled to a directed
verdict of acquittal.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)
(quoting Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977)). In making
this assessment,
the trial court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. If the evidence is
4
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). Ultimately, “[s]o
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.” Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020).
Kelly’s challenge involves his convictions for first-degree wanton
endangerment and first-degree unlawful imprisonment as to Terry and S.K.
Kelly does not challenge his convictions as they relate to Jon Peter on these
grounds. Because a different analysis is required for the different offenses, we
address each in turn, beginning with Kelly’s wanton endangerment convictions.
1. Wanton Endangerment.
To be found guilty of first-degree wanton endangerment, a person must
“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.” KRS2 508.060(1). Kelly
frames his argument around testimony that he never pointed his gun at Terry
or S.K.—only Jon Peter—and asserts the Commonwealth could not have
established Kelly created a “substantial danger of death or serious physical
injury” as to either of those victims.
2 Kentucky Revised Statutes.
5
In support, Kelly points the court to Swan v. Commonwealth, 384 S.W.3d
77 (Ky. 2012). In that case, Marcus Swan and D’Andre Owens entered the
home of Brandon Lumpkins where he and some of his family and friends were
gathered. Swan entered the home masked and gloved, armed with guns, and
ordered everyone within sight into a single room. With everyone gathered, the
assailants fired several shots, some at individuals, others at walls or the
ceiling. Unbeknownst to the assailants, Lumpkins’ mother was hidden under
the bed in a back bedroom.
Swan and Owens were convicted of a number of charges, including six
counts of first-degree wanton endangerment. On appeal, Owens argued that
he was entitled to a directed verdict as to Lumpkins’ mother, the only victim
not present in the living room. We agreed, stating “[t]he offense alleged to have
been committed against her does not fit clearly with the quintessential
examples of first-degree wanton endangerment.” 384 S.W.3d at 103.
Importantly, we noted the facts that Ms. Lumpkins was in a separate room,
that no shot was ever fired at the room, and that during a brief moment when
she peeked out of the room, she was unnoticed and no gun was ever pointed at
her. Id. at 103-04. We also noted that even though Swan and possibly Owens
entered the room while armed, “[m]erely being in the presence of guns, even
when wielded by persons who are intent on harming and terrorizing, is not
sufficient by itself to create a wanton-endangerment crime.” Id. at 104.
Accordingly, we found the trial court should have granted a directed verdict on
the first-degree wanton endangerment charge as related to Ms. Lumpkins.
6
Notwithstanding our decision in Swan, the first-degree wanton
endangerment convictions as to both S.K. and Terry are fully merited. As to
S.K., we have long held that pointing a gun at another person supports a
wanton endangerment charge. See Commonwealth v. Clemons, 734 S.W.2d
459, 461 (Ky. 1987) (pointing a firearm at law enforcement supported first-
degree wanton endangerment charge); Thomas v. Commonwealth, 567 S.W.2d
299, 301 (Ky. 1978) (pointing a gun at a person supports wanton
endangerment even if the weapon was inoperable), overruled on other grounds
by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020); Key v. Commonwealth,
840 S.W.2d 827, 829 (Ky. App. 1992) (holding that the pointing of a gun,
whether loaded or unloaded (provided reason exists to believe the gun may be
loaded), at any person constitutes conduct, under KRS 508.060(1), that
“creates a substantial danger of death or serious physical injury to another
person[]”).
In this case, evidence adduced at trial showed that when Kelly pointed
the gun at Jon Peter, S.K. was standing next to Jon Peter and Jon Peter pulled
S.K. close to him to use his body as a shield between S.K. and the gun. The
substantial danger presented to Jon Peter as Kelly pointed his gun at him was,
by virtue of their positioning, also present with regard to S.K. The evidence
presented at trial supported the jury’s conclusion that Kelly had committed
first-degree wanton endangerment with regard to S.K. The trial court did not
err in denying the motion for directed verdict as it related to that count.
7
While the situation for Terry is different, we nevertheless hold that the
evidence was sufficient to support the charge of wanton endangerment. Here,
Kelly wielded a 9-millimeter handgun, waving it around in manner that
increased the probability that discharge may occur. Terry was within the
immediate area within which such conduct “create[d] a substantial danger of
death or serious physical injury.” KRS 508.060(1). These facts contrast to
those in Swan, in which we noted that “unlike the victims in the front room,
Ms. Lumpkins was not present when Owens and his confederate were waving
their guns around haphazardly and making threats.” 384 S.W.3d at 103.3
Thus, Swan does not mandate the result Kelly seeks.
Likewise, Gilbert v. Commonwealth, 637 S.W.2d 632 (Ky. 1982), does not
support Kelly’s argument. In that case, the defendant entered a store and
placed a gun on a counter with his hand rested on it, but did not point at the
employee. 637 S.W.2d at 634. Significantly, the defendant neither brandished
nor wielded the gun in her presence in the manner as Kelly did in this case.
The trial court did not err in denying Kelly’s motions for directed verdict
as to the wanton endangerment charge with respect to Terry.
3 Following this analysis, we included the statement quoted above that “[m]erely
being in the presence of guns, even when wielded by persons who are intent on
harming and terrorizing, is not sufficient by itself to create a wanton-endangerment
crime.” Swan at 104. The proof in Swan, however, was equivocal as to whether either
defendant was armed even had either entered the bedroom where Ms. Lumpkins was
hiding.
8
2. Unlawful Imprisonment.
Regarding the two counts of first-degree unlawful imprisonment, we find
no error on either count. Under KRS 509.020(1), “[a] person is guilty of
unlawful imprisonment in the first degree when he knowingly and unlawfully
restrains another person under circumstances which expose that person to a
risk of serious physical injury.” Our legislature has defined “serious physical
injury” to mean, “physical injury which creates a substantial risk of death, or
which causes serious and prolonged disfigurement, prolonged impairment of
health, or prolonged loss or impairment of the function of any bodily organ.”
KRS 500.080(15).
Importantly, for conduct to be considered first-degree unlawful
imprisonment, it need only create a risk of any of the above, and this element
distinguishes this offense from the “substantial danger” requirement of first-
degree wanton endangerment. See Bell v. Commonwealth, 122 S.W.3d 490,
497 (Ky. 2003) (interpreting substantial danger to mirror substantial risk and
noting, “a substantial risk is a risk that is [a]mple, [c]onsiderable in . . . degree
. . . or extent, and [t]rue or real; not imaginary. Accordingly, . . . not all risks
are substantial—hence the phrase ‘low risk’—and not every hypothetical
scenario of ‘what might have happened’ represents a substantial risk.” (internal
quotations omitted)). The omission of the word “substantial” in KRS 509.020(1)
indicates that a lower degree of risk is necessary to find a defendant guilty of
first-degree unlawful imprisonment.
9
Here, Kelly’s behavior created a sufficient risk of serious physical injury
to both Terry and S.K. such that the trial court did not err in denying Kelly’s
motion for directed verdict on these convictions. Clearly, Kelly’s conduct
toward S.K. and Terry was sufficient, our having already found Kelly’s act of
pointing his gun in the direction of S.K. created a substantial risk as to support
his first-degree wanton endangerment charge. As to Terry, Kelly, with his gun
in hand, ordered Terry into the home and confined him there. As the incident
wore on and Kelly became less stable, he waved the loaded gun around as he
engaged in negotiations with law enforcement. Though Kelly never pointed the
gun at Terry, Kelly’s actions nonetheless did create a risk of serious physical
injury to Terry, an injury that could have been easily realized through the
inadvertent discharge of the weapon and an unfortunate ricochet of the bullet.
That risk was not lower than the threshold set by KRS 509.020. The trial court
was accordingly correct to deny Kelly’s motion for directed verdict as to the two
first-degree unlawful imprisonment charges.
B. Double Jeopardy.
Kelly next argues that his convictions for first-degree wanton
endangerment and first-degree unlawful imprisonment violate the double
jeopardy clause of the United States and Kentucky constitutions. Specifically,
he argues (1) the convictions for the two sets of crimes arise from the same
conduct; and (2) the two sets of crimes required the jury to find two
inconsistent mental states.
10
Kelly did not raise this issue before the trial court; however, “the
constitutional protection against double jeopardy is not waived by failing to
object at the trial level.” Walden v. Commonwealth, 805 S.W.2d 102, 105
(Ky.1991) overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d
805 (Ky.1996). We accordingly review the asserted double jeopardy violation
for palpable error. Cardine v. Commonwealth, 283 S.W.3d 641, 653 (Ky. 2009)
(stating “double jeopardy violations can be addressed as palpable error because
the nature of such errors is to create manifest injustice[]”).
In assessing double jeopardy, Kentucky uses the Blockburger4 test and
applies our statutory double jeopardy provision, KRS 505.020. Terry v.
Commonwealth, 253 S.W.3d 466, 470 (Ky. 2007); Burge, 947 S.W.2d at 811.
“We are to determine whether the act or transaction complained of constitutes
a violation of two distinct statutes and, if it does, if each statute requires proof
of a fact the other does not.” 947 S.W.2d at 811. Our double jeopardy analysis
focuses solely on “whether each statute, on its face, contains a different
element,” Dixon v. Commonwealth, 263 S.W.3d 583, 591 (Ky. 2008), and “not
the charging information, jury instruction, underlying proof needed, or the
actual evidence presented at trial.” Id. at 591 n. 30 (quoting 21 Am.Jur.2d
Criminal Law § 302 (2008)).
Convictions for both first-degree wanton endangerment and first-degree
unlawful imprisonment are not violative of the double jeopardy clause under
4 Blockburger v. United States, 284 U.S. 299 (1932).
11
the Blockburger test. Unlawful imprisonment requires proof of an element not
required for wanton endangerment, namely that a person “knowingly and
unlawfully restrain[] another person.” KRS 509.020(1). Kelly’s claim fails in
that regard.
Kelly also asserts the facts used to establish his convictions for both sets
of offenses were the same and therefore violative of statutory double jeopardy.
KRS 505.020, our “statutory double jeopardy” provision, prohibits convictions
for more than one offense when “one offense is included in the other” which is
the case when both offenses are “established by proof of the same or less than
all the facts.” KRS 505.020(1)(a), (2)(a).
Reasonable jurors could have concluded Kelly was guilty of both crimes
because two discrete events occurred. Though the three victims were detained
in the home for the duration of the incident, the specific acts constituting
wanton endangerment were discrete and distinguishable from those acts that
support unlawful detention. The wanton endangerment convictions arose from
moments in the incident wherein Kelly pointed the gun at Jon Peter and S.K.,
placing them momentarily at a greater risk of injury and justifying first-degree
wanton endangerment, and brandished his gun in a manner that placed Terry
at risk of injury. Initially, none of the three was restrained. Kelly’s unlawful
imprisonment convictions for S.K., Terry and Jon Peter stemmed from his other
actions that day, including forcing S.K. and Terry into the home while
brandishing a weapon, forcing them to remain in the home, confiscating their
cell phones, and waving his gun during the standoff with law enforcement
12
while refusing to release Jon Peter to police. This result is consistent with our
reasoning in other cases. See Kiper v. Commonwealth, 399 S.W.3d 736, 745
(Ky. 2012) (holding “KRS 505.020 does not bar the prosecution or conviction
upon multiple offenses arising out of a single course of conduct when the facts
establish that two or more separate and distinct attacks occurred during the
episode of criminal behavior[]” (citing Welborn v. Commonwealth, 157 S.W.3d
608, 611–12 (Ky.2005))); Dixon, 263 S.W.3d at 592 (ruling existence of two
separate physical injuries allowed jurors to find guilt of first-degree assault and
first-degree rape); Robbins v. Commonwealth, No. 2015-SC-000478, 2017 WL
5494103 at *10 (Ky. Mar. 23, 2017) (finding no violation of statutory double
jeopardy in conviction for First–Degree Wanton Endangerment and First–
Degree Unlawful Imprisonment where jury could have based convictions on
multiple incidents that occurred between defendant and victim while she was
kept in the home with defendant).
Kelly’s argument regarding the inconsistent mental states for unlawful
imprisonment and wanton endangerment fails for the same reason. Just as
the jury reasonably could have identified multiple acts that supported their
respective findings, so too could the jury find varying mental states present in
those acts. At the time Kelly pointed his gun at S.K. and Jon Peter, the jury
could have found he was acting wantonly. At the time Kelly refused to release
Jon Peter to law enforcement, the jury reasonably could have found Kelly was
acting knowingly. And similarly, when Kelly forced S.K. and Terry into the
13
home and held them there, the jury could have reasonably found he acted
knowingly. We see no inconsistency as to violate statutory double jeopardy.
C. Admission of KRE5 404(b) Evidence.
Kelly’s third argument is that the trial court erred in admitting KRE
404(b) evidence of a prior incident of unlawful imprisonment involving his
fiancée as well as his prior use of methamphetamine. The Commonwealth
contends that the introduction of such evidence was proper, it being offered to
show intent or lack of mistake. We find no abuse of discretion in admitting the
evidence.
Prior to trial, the Commonwealth provided its notice of intent to
introduce other crimes, wrongs, or acts pursuant to KRE 404(b). The
Commonwealth sought to have admitted evidence of two specific prior acts: a
2016 incident wherein Kelly discharged a firearm during an attempt to enter
another’s residence and an incident occurring on August 7, 2020, fifteen days
before the incident at issue, wherein Kelly was alleged to have held his fiancée,
Vanessa Crotser,6 against her will in their home with a firearm.7 The trial
court partially allowed the Commonwealth to introduce its evidence. Evidence
of the 2016 incident was excluded as not substantially relevant or probative
5 Kentucky Rules of Evidence.
6 Vanessa Crotser testified as Vanessa Kelly at trial. To avoid confusion, we
refer to her by her first name herein.
7 At the time of trial in this matter, Kelly had not yet resolved the charges in the
case involving Vanessa. After he was convicted here, he pled guilty to charges of
receiving stolen property (firearm), first-degree unlawful imprisonment, tampering with
physical evidence, and first-degree wanton endangerment.
14
and overly prejudicial. Evidence of the August 7 incident was allowed, the
court finding the prior event to be similar enough to the current occasion to be
relevant and probative and the value of the evidence not outweighed by the
prejudice to Kelly. However, evidence concerning dissimilar offenses for which
Kelly was charged in the August 7 incident was excluded.8 The trial court
further included a limiting instruction related to the August 7 incident as part
of the guilt-phase instructions provided to the jury during trial.9
At trial, the August 7 incident was first raised on the Commonwealth’s
cross-examination of Kelly. Kelly denied that he unlawfully imprisoned
Vanessa and that the argument between them began over information on a cell
phone. The Commonwealth further asked if Kelly used methamphetamine
during the incident with Vanessa, to which Kelly admitted methamphetamine
use in the recent past. Defense counsel objected to the testimony, but the trial
court allowed the questioning, reasoning defense counsel opened the door by
eliciting testimony from Kelly’s mother-in-law that Kelly seemed under the
influence during the Lee incident.
Vanessa was called in rebuttal by the Commonwealth. Vanessa denied
being unlawfully restrained by Kelly, but admitted he had a gun in the room
8 The trial judge did not allow the Commonwealth to introduce evidence
concerning the offenses of receiving stolen property (firearm), tampering with physical
evidence, or firing shots during the incident (presumably referring to the charge of
second-degree assault).
9 In the relevant portion, the instruction directed the jury to “consider the
evidence [of the August 7 incident] only as it relates to the Commonwealth’s claim of
Mark E. Kelly’s intent or absence of mistake. You must not consider it for any other
purpose.”
15
where the incident occurred. The Commonwealth also elicited further
testimony regarding incidents of methamphetamine use by Kelly.
Evidentiary issues are reviewed for abuse of discretion. See, e.g., Brewer
v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006). “The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky.1999).
As a general rule, “prior acts of violence or threats of violence against
persons other than the victim in the case on trial . . . are inadmissible.” Driver
v. Commonwealth, 361 S.W.3d 877, 885-86 (Ky. 2012) (quotation omitted).
However, such evidence may be admissible “if offered for another purpose or
inextricably intertwined with other evidence essential to the case.” Sherroan v.
Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004) (citations omitted). In other
words, the proffered evidence must comport with KRE 404(b). Gabbard v.
Commonwealth, 297 S.W.3d 844, 858 (Ky. 2009).
KRE 404(b) provides,
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. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident[.]
We have described this provision as exclusionary in nature and found that
“exceptions allowing evidence of collateral criminal acts must be strictly
construed.” Leach v. Commonwealth, 571 S.W.3d 550, 554 (Ky. 2019).
16
However, the list provided in KRE 404(b)(1) is illustrative rather than
exhaustive. Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998) (citing R.
Lawson, The Kentucky Evidence Law Handbook, § 2.25, at 87 (3rd ed. 1993)).
We have set forth a three-prong test to determine the admissibility of
other bad acts evidence: “(1) Is the evidence relevant? (2) Does it have
probative value? (3) Is its probative value substantially outweighed by its
prejudicial effect?” Leach, 571 S.W.3d at 554 (citing Purcell v. Commonwealth,
149 S.W.3d 382, 399-400 (Ky. 2004); Bell v. Commonwealth, 875 S.W.2d 882,
889 (Ky. 1994)). The first prong may be satisfied by a determination that the
proffered evidence adheres to KRE 404(b)(1) and is being used to prove material
facts actually in dispute. Id.If the evidence is relevant, then the trial court must determine if the
evidence is probative. This burden is met by a showing that the “jury could
reasonably infer that the prior bad acts occurred and that [the defendant]
committed such acts.” Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky.
1997).
Finally, if the evidence is both relevant and probative, then the trial court
must determine “if the potential for undue prejudice substantially outweighs
the probative value of the evidence.” Leach, 571 S.W.3d at 554. If so, then the
evidence must be excluded. The prejudice must go beyond that which is
merely detrimental to a party’s case and be of such character that it “produces
an emotional response that inflames the passions of the triers of fact or is used
17
for an improper purpose.” Id. (quoting R. Lawson, The Kentucky Evidence Law
Handbook, § 2.25[3][d], at 135 (4th ed. 2003)).
Here, the Commonwealth argues the evidence was properly admissible to
show intent or lack of mistake. The Commonwealth sought to show that Kelly
used the gun and forced Terry and S.K. into the home with the intent of
restraining them. Defense counsel argued prior to and during trial that what
occurred in the Lee home did not stem from a desire to cause harm to Terry
and S.K., but rather from a period of confusion brought on by either
methamphetamine use or a mental health episode.10 In either case defense
counsel explained what happened to the victims in the Lee home as an
unfortunate mistake, that Kelly had the gun for self-defense and that he locked
Terry and S.K. in the home not to prevent them from leaving, but to prevent
others from entering the home to get to Kelly.
We find no abuse of discretion in allowing the evidence of the prior
imprisonment of Vanessa. The evidence went to Kelly’s intentions that day and
addressed Kelly’s defense that what occurred was a mistake and a
misunderstanding. That Kelly had engaged in substantially similar behavior
only fifteen days prior to what occurred at the Lee home was probative of
Kelly’s mental state during the incident at issue here. Part of Kelly’s case at
10 At various points before and during trial, the strategy of defense counsel
appeared to vary between describing the event as caused by the methamphetamine
use to claiming that methamphetamine played no role in a mental health episode.
Ultimately, and as Kelly points out, no affirmative defense regarding Kelly’s mental
health was raised by trial counsel and no experts were produced to testify as to Kelly’s
mental state at the time of the Lee incident.
18
trial—and part of his argument on appeal—was that he possessed the gun for
purposes unrelated to endangering the Lee home and unrelated to holding the
people in the Lee home against their will. Evidence that Kelly used a weapon to
hold another person against her will not long before incident at the Lee home
spoke to an essential element of the crimes for which Kelly was charged.
Accordingly, the KRE 404(b) evidence was both relevant and probative.
Finally, we address whether the evidence’s prejudicial effect overcame its
probative value. We hold it did not. Certainly, the evidence was prejudicial to
Kelly’s case, but it was not “unfairly prejudicial,” Price v. Commonwealth, 31
S.W.3d 885, 888 (Ky. 2000), or such as to “induce the jury to decide the case
on an improper basis.” Brown v. Commonwealth, 313 S.W.3d 577, 619 (Ky.
2010). The fact, as described at trial, that Kelly had engaged in another
instance of unlawful imprisonment undoubtedly caused the jury to consider
guilt a stronger possibility. Nonetheless, we cannot say the evidence inflamed
the passions of the jurors or that it was used for an improper purpose.
Ultimately, the probative value of the prior bad acts evidence outweighed the
prejudicial effect of its introduction. For this reason, we are unable to say that
the trial judge committed an abuse of discretion in allowing the evidence to be
presented.
D. Improper Argument by Commonwealth During Sentencing.
Finally, Kelly argues that the Commonwealth made two errors during the
sentencing phase that mandate returning this matter to the trial court for re-
sentencing. Specifically, Kelly argues that the Commonwealth committed
19
palpable error when it (1) expressed its disappointment that the jury had
acquitted Kelly of burglary and (2) when the Commonwealth invited the jury to
take into consideration Kelly’s potential parole eligibility date while setting his
punishment.
This issue was not preserved at the trial level, so Kelly requests review
palpable error pursuant to RCr11 10.26.12 We have said that for an error to be
considered palpable it must “be so egregious that it jumps off the page . . . and
cries out for relief.” Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky.
2012). The party seeking palpable error review must establish “the probability
of a different result or error so fundamental as to threaten his entitlement to
due process of law.” Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007)
(citation omitted).
When reviewing alleged instances of prosecutorial misconduct for
palpable error, we have set forth some relevant criteria:
An appellate court’s review of alleged error to determine
whether it resulted in “manifest injustice” necessarily must begin
with an examination of both the amount of punishment fixed by
the verdict and the weight of evidence supporting that punishment.
Other relevant factors, however, include whether the
Commonwealth’s statements are supported by facts in the record
and whether the allegedly improper statements appeared to rebut
arguments raised by defense counsel. Finally, we must always
11 Kentucky Rules of Criminal Procedure.
12 RCr 10.26 states,
A palpable error which affects the substantial rights of a party
may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved
for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
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consider these closing arguments “as a whole” and keep in mind
the wide latitude we allow parties during closing arguments.
Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2000).
Our review of the prosecutor’s statements regarding the acquitted
burglary charge reveals no error. The full context of the prosecutor’s
statements indicates that the statement was not an attempt to “shame jurors
or attempt to put community pressure on juror’s decisions,” Cantrell v.
Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009), but was rather an
exhortation for the jury to consider all the evidence that had been put before
them, including the evidence relating to the charge on which it ultimately
acquitted Kelly. Although we are mindful of Kelly’s concerns that such a
statement could be considered a sanction for a prior acquittal, we do not
believe that the statements at issue here, placed in their full context, exceed
the “wide latitude” we allow during closing arguments. Accordingly, we find no
palpable error in the Commonwealth’s statements.
As to the Commonwealth’s discussion of Kelly’s parole eligibility date, the
Commonwealth apparently concedes error, arguing only that the error did not
rise to the level of manifest injustice. However, we note that KRS 532.055
explicitly permits the introduction of evidence of a defendant’s “[m]inimum
parole eligibility[.]” KRS 532.055(2)(a)(1). See also Boone v. Commonwealth,
780 S.W.2d 615, 61-17 (Ky. 1989) (holding both Commonwealth and defendant
may introduce evidence of minimum parole eligibility). We have found
discussion of parole eligibility to be error where misinformation was provided to
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the jury,13 but no party alleges such misinformation was given here. Our
review of the Commonwealth’s closing argument similarly revealed no
misinformation. We find no error in the Commonwealth’s discussion of Kelly’s
minimum parole eligibility date during the sentencing-phase closing statement.
III. Conclusion.
For the foregoing reasons, we affirm the Marion Circuit Court in all
respects.
All sitting. All concur
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
13 See, e.g., Beard v. Commonwealth, 581 S.W.3d 537 (Ky. 2019) (prosecutor’s
misstatement regarding parole eligibility for violent first-degree burglary was
misconduct); Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005) (prosecutor’s
incorrect statements regarding good time credit were misconduct).
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