Roy Sherman Bunch v. Commonwealth of Kentucky ( 2023 )


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    RENDERED: MARCH 23, 2023
    NOT TO BE PUBLISHED
    Supreme Court of Kentucky
    2021-SC-0584-MR
    ROY SHERMAN BUNCH                                                       APPELLANT
    ON APPEAL FROM WASHINGTON CIRCUIT COURT
    V.                 HONORABLE KAELIN G. REED, JUDGE
    NO. 19-CR-00105
    COMMONWEALTH OF KENTUCKY                                                  APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    On October 24, 2019, Appellant Sherman Bunch fired gunshots at
    his former girlfriend Julee Gribbins1 and his cousin Tim Marple as they fled
    into Marple’s home. Marple’s eight-year-old daughter Veda was in the home at
    the time. Bunch also fired shots into Gribbins’ unoccupied vehicle parked near
    the home. None of Bunch’s shots struck Marple, Gribbins, or Veda.
    A jury in Washington Circuit Court convicted Bunch of two counts of
    attempted murder, one count of wanton endangerment in the first degree, and
    two counts of first-degree criminal mischief. The jury recommended a total
    sentence of thirty-five years and the trial court sentenced in conformity with
    1 The Commonwealth identifies Julee’s surname as “Gribbons.” However, the
    record below and Bunch refer to her as “Gribbins” and we therefore adopt that spelling
    herein.
    that recommendation. Bunch now appeals to this Court as a matter of right.
    KY. CONST. § 110(2)(b). Following a careful review, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Julee Gribbins and Sherman Bunch were in a romantic relationship
    beginning in 2014. The relationship was tumultuous and involved numerous
    incidents of domestic violence. Gribbins moved out of Bunch’s home in July
    2019 and ended her relationship with him by October 2019.
    On the night of October 24, 2019, Gribbins visited the home of Bunch’s
    cousin and neighbor Tim Marple. During the visit Gribbins, Marple, and Veda
    went onto the porch and saw a car driving down the road. Gribbins told
    Marple it was Bunch’s vehicle. Veda went back inside, followed later by
    Gribbins and Marple. Gribbins then went back outside to start her car before
    returning to the home to use the restroom. Gribbins was scared and Marple
    therefore accompanied her as she prepared to walk back to her car.
    While heading back to her car with Marple, Gribbins opened Marple’s
    basement storm door and saw Bunch standing about twenty feet away.
    Gribbins screamed “run” and began to run back through the house with
    Marple. As they ran Bunch fired shots through the basement doorway and
    through a window above the basement door. One shot passed between
    Gribbins and Marple. Bunch also fired shots into Gribbins’ vehicle.
    Gribbins and Marple barricaded themselves in an upstairs bedroom and
    were eventually able to get Marple’s eight-year-old daughter Veda, who had
    been in an upstairs bathroom when Bunch began shooting. None were hit by
    2
    the gunfire, though Gribbins was struck by exploding glass during the
    shooting. In fact, she told a 911 operator she may have been struck by a bullet
    in the back.
    There was no evidence at trial that Bunch ever entered the house. Police
    eventually located him after the shooting and took him to the hospital for a
    possible overdose of nitroglycerin. While at the hospital Bunch gave a
    voluntary statement to Deputy Ryan White in which he stated, among other
    things, that he only intended to scare rather than kill Gribbins and Marple,
    that he did not know Veda was in the home at the time of the shooting, and
    that he would have waited until a different time if he had known Veda was
    there.
    A grand jury indicted Bunch on three counts of attempted murder, one
    count of tampering with physical evidence, and two counts of first-degree
    criminal mischief. Bunch’s defense at trial was that he fired the shots with the
    intent only to scare rather than kill Gribbins and Marple, and that he did so
    under extreme emotional disturbance (“EED”) due to their tormenting of him.
    The trial court instructed the jury on EED and gave attempted first-degree
    manslaughter and first-degree wanton endangerment instructions as lesser-
    included offenses of the attempted murder charges. The trial court refused
    Bunch’s request for lesser-included offense instructions as to second-degree
    wanton endangerment or attempted first-degree assault under EED.
    The jury convicted Bunch on one count of attempted murder as to
    Gribbins, one count of attempted murder as to Marple, one count of first-
    3
    degree wanton endangerment as to Veda, and two counts of first-degree
    criminal mischief. The jury recommended a sentence of fifteen years on each of
    the attempted murder convictions and five years on the wanton endangerment
    conviction to run consecutively, along with concurrent one-year sentences on
    the criminal mischief convictions, for a total sentence of thirty-five years. The
    trial court sentenced Bunch in accordance with this recommendation.
    ANALYSIS
    Bunch raises three issues for our review: (1) whether he was
    substantially prejudiced by the trial court’s admission of the investigating
    deputy’s testimony regarding his reasons for charging Bunch with attempted
    murder; (2) whether he was substantially prejudiced by the trial court’s
    admission of evidence of prior domestic violence and related convictions; and
    (3) whether the trial court erred in refusing to instruct as to second-degree
    wanton endangerment and attempted first-degree assault under extreme
    emotional disturbance. We review each issue in turn, providing additional
    facts as necessary.
    I.     The trial court did not err in admitting the investigating
    deputy’s testimony regarding his reasons for charging Bunch
    with attempted murder.
    Bunch argues the trial court erred in allowing Deputy White, the
    investigating sheriff’s deputy, to testify as to the reasons for his decision to
    charge Bunch with attempted murder. We generally review an allegation of
    nonconstitutional evidentiary error for abuse of discretion. Mason v.
    Commonwealth, 
    559 S.W.3d 337
    , 339 (Ky. 2018). That is, we ask whether the
    4
    trial court’s ruling was “‘arbitrary, unreasonable, unfair, or unsupported by
    sound legal principles.’” 
    Id.
     (quoting Lopez v. Commonwealth, 
    459 S.W.3d 867
    ,
    872-73 (Ky. 2015)). A nonconstitutional evidentiary error “‘may be deemed
    harmless if the reviewing court can say with fair assurance that the judgment
    was not substantially swayed by the error.’” 
    Id. at 339-40
     (quoting Murray v.
    Commonwealth, 
    399 S.W.3d 398
    , 404 (Ky. 2013)).
    At trial, the Commonwealth played a recording of Bunch’s voluntary
    interview with Deputy White in the hospital shortly after the shooting. Bunch’s
    counsel then cross-examined Deputy White, eliciting the deputy’s
    acknowledgement that Bunch repeatedly said during that interview he
    intended only to scare Gribbins and Marple, despite not then knowing he
    would be charged with attempted murder. On re-direct examination the
    Commonwealth then asked Deputy White what factors caused him to charge
    Bunch with attempted murder.
    The defense objected and a bench conference was held. The
    Commonwealth argued that in cross-examining Deputy White, Bunch’s counsel
    challenged the propriety of his decision to charge attempted murder and thus
    opened the door to Deputy White’s explanation of his basis for those charges.
    The trial court agreed with the Commonwealth and overruled the defense
    objection. Deputy White then offered the following testimony regarding the
    factors that led him to charge Bunch with attempted murder:
    So based upon the evidence that was on the scene at [the location
    of the shooting], as well as evidence that was recovered [at the
    location where Bunch was found], being the mask, the gloves, the
    flashlight, binoculars, the bullet casings, where they was [sic] in
    5
    the doorway as to where he was. The fact that the bullets,
    generally most wanton endangerment cases are, you know,
    someone shooting into the ground, into the air, it’s generally not
    directly at where the victims were standing. Due to the fact that
    they were standing in that threshold of that doorway and bullets
    came through the threshold of that doorway, as well as the mask
    and gloves, and the jacket you know which showed premeditation.
    You know and the fact that he said, “If I knew Veda was there I
    would’ve did it a different night,” you know. Due to those things
    that’s why I decided to go with criminal intent to commit murder.
    A. Deputy White did not state conclusions of law or opine as to the
    ultimate issue of guilt.
    Bunch first contends Deputy White’s testimony regarding his reasons for
    charging Bunch with attempted murder was an impermissible conclusion of
    law and opinion that Bunch was guilty of attempted murder rather than
    wanton endangerment. Before proceeding to the merits, however, we first note
    we have no occasion here to consider whether Bunch “opened the door” to
    Deputy White’s testimony. Also known as the doctrine of curative
    admissibility, “‘opening the door’ . . . is a form of waiver that happens when one
    party’s use of inadmissible evidence justifies the opposing party’s rebuttal of
    that evidence with equally inadmissible proof.’” 
    Id. at 343-44
     (quoting
    Commonwealth v. Stone, 
    291 S.W.3d 696
    , 701-02 (Ky. 2009)) (emphasis added).
    Here, Deputy White’s testimony arose because the Commonwealth played
    Bunch’s recorded interview for the jury. That recorded interview was not
    inadmissible evidence.2 On cross-examination, Bunch then elicited Deputy
    White’s acknowledgement that Bunch stated during the interview he only
    2 Bunch’s statement to Deputy White was not inadmissible hearsay given Bunch’s
    status as a party-opponent to the Commonwealth. KRE 801A(b)(1).
    6
    intended to scare Gribbins and Marple, and that he did not know at the time of
    that statement that he would be charged with attempted murder. This too was
    not inadmissible. The Commonwealth then asked Deputy White to explain the
    basis for charging attempted murder. Thus, because Deputy White’s testimony
    explaining the basis for his attempted murder charges was not precipitated by
    inadmissible testimony, we need not consider whether Bunch “opened the
    door” to Deputy White’s explanation.
    As to the merits of Bunch’s contention that the trial court erred in
    admitting Deputy White’s testimony, it is well-recognized that “a witness
    generally cannot testify to conclusions of law.” Tamme v. Commonwealth, 
    973 S.W.2d 13
    , 32 (Ky. 1998). The admission of a witness’s opinion as to the
    defendant’s guilt or innocence is likewise improper. Nugent v. Commonwealth,
    
    639 S.W.2d 761
    , 764 (Ky. 1982) (“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 . . . .”).
    Here, however, Deputy White offered no conclusion of law or opinion as
    to Bunch’s guilt or innocence. Rather, he testified to the facts he believed
    warranted a charge of attempted murder. Those facts included his location of
    items suggesting premeditation in Bunch’s car, Bunch’s firing of bullets
    through the doorway where the victims had been standing and the casings
    found nearby, the fact Bunch fired the bullets directly at the victims rather
    than at the air or ground, Bunch’s statement he would have waited if he had
    known Veda was home, and Bunch’s history of domestic violence against
    7
    Gribbins. At no point did Deputy White either state or imply that the proper
    conclusion from these facts was that Bunch was guilty of attempted murder.
    Nor did Deputy White opine that he believed Bunch was guilty. His testimony
    therefore did not violate the prohibitions against a witness offering conclusions
    of law or opinions as to guilt or innocence.
    B. Deputy White did not misstate the law regarding wanton
    endangerment.
    Bunch also argues Deputy White misstated the law in testifying that
    “generally most wanton endangerment cases are, you know, someone shooting
    into the ground, into the air, it’s generally not directly at where the victims
    were standing.” The Commonwealth first responds that although Bunch
    objected generally to Deputy White explaining the reasons for charging
    attempted murder, this issue is not preserved because Bunch did not
    thereafter specifically object to Deputy White’s statement regarding wanton
    endangerment. When the Commonwealth asked Deputy White to give his
    reasons for charging attempted murder, Bunch objected before Deputy White
    could answer and a bench conference was held. At the bench conference
    Bunch asserted the question was improper because the trial was not a
    probable cause hearing, the jury was tasked with determining Bunch’s intent
    rather than the basis for his charges, and the question essentially allowed the
    Commonwealth to make a closing argument. Bunch thus offered specific
    objections to the question before it was answered, and he was not required to
    later rearticulate his objections to specific testimony made in response to that
    question to preserve the error. See Louisville & N.R. Co. v. Rowland’s Adm’r,
    8
    
    215 Ky. 663
    , 
    286 S.W. 929
    , 930 (1926) (“The law does not require idle
    formalities, and, the court having ruled the evidence admissible, and proper
    exceptions having been reserved, further objection to the same line of
    interrogation is not required.”). We thus conclude Bunch’s original objection
    was sufficient to preserve this issue.
    Bunch contends Deputy White misstated the law regarding wanton
    endangerment because shooting into an occupied building is a classic example
    of wanton endangerment. Unquestionably there are circumstances where
    shooting into an occupied building constitutes wanton endangerment. See
    KRS3 508.060, Commentary (1974) (explaining that shooting into an occupied
    building with neither the intent nor effect of causing death or injury may
    constitute wanton endangerment). We have even previously recognized that
    the firing of weapons into occupied buildings is a “prototype” example of first-
    degree wanton endangerment. Swan v. Commonwealth, 
    384 S.W.3d 77
    , 102
    (Ky. 2012).
    Deputy White’s testimony cast no doubt on that assertion. Indeed,
    Deputy White made no reference whatsoever to occupied buildings in
    discussing wanton endangerment. Rather, he testified that wanton
    endangerment generally does not involve firing directly at victims. Deputy
    White did not testify that firing into an occupied building cannot constitute
    wanton endangerment. Nor did he testify that firing into the air or the ground
    are the only times in which a finding of wanton endangerment would be
    3   Kentucky Revised Statutes.
    9
    appropriate. Rather, he simply stated that “generally most” wanton
    endangerment cases do not involve shooting directly at the victims but rather
    involve shooting into the air or the ground. While there are certainly many
    circumstances other than shooting into the air or ground that may constitute
    wanton endangerment, we do not find that Deputy White’s testimony rose to
    the level of a misstatement or mischaracterization of the law.
    We further note that even if Deputy White’s testimony had been a
    misstatement of the law, any such error would have been harmless. The jury
    instructions properly set forth the required elements under KRS 508.060 for a
    finding that Bunch was guilty of first-degree wanton endangerment. In
    considering an appeal, we “presume that the jury followed the instructions
    before it.” Jewish Hosp. & St. Mary’s Healthcare, Inc. v. House, 
    563 S.W.3d 626
    , 636-37 (Ky. 2018). We have no reason here to question that presumption.
    Thus, because we presume the jury followed the trial court’s correct instruction
    regarding the elements of first-degree wanton endangerment, there is no basis
    to conclude Deputy White’s testimony had a substantial influence on the jury’s
    findings and any alleged error in his brief reference to wanton endangerment
    would have been harmless. See Mason, 559 S.W.3d at 339-40.
    C. Deputy White did not opine as to the nature of Bunch’s crimes.
    Bunch further argues Deputy White’s testimony regarding his reasons for
    charging attempted murder also impermissibly created an impression of expert
    law enforcement opinion that a verdict on a lesser-included offense of wanton
    endangerment was not warranted. Bunch contends the admission of this
    10
    testimony was thus contrary to our holding in Ordway v. Commonwealth, 
    391 S.W.3d 762
     (Ky. 2013). We conclude that Ordway is clearly distinguishable
    from the facts here.
    In Ordway, the defendant Ordway was riding in a car with the two
    victims. 391 S.W.3d at 772. A scuffle erupted and Ordway shot them. Id. The
    car then crashed and Ordway exited. Id. Witnesses testified that Ordway then
    returned to the car and again fired at the victims multiple times. Id. Witnesses
    testified Ordway also unsuccessfully tried to commandeer the vehicles of
    passing motorists at gunpoint. Id. at 772-73. While in jail, Ordway
    spontaneously told an investigating detective prior to the initiation of any
    custodial interrogation that he had “‘nothing for [him].’” Id. at 773.
    Ordway was charged with two counts of intentional murder. Id. at 771.
    At trial he claimed self-defense. Id. at 772. The investigating detective testified
    over Ordway’s objection that people who legitimately exercise self-defense
    typically do not leave the scene of the crime, but rather put their weapon down,
    call 911 or otherwise request assistance, and cooperate fully with police. Id. at
    775. He further testified “‘[t]hey certainly don’t leave the scene’” and they
    “‘don’t try to commandeer vehicles with force with a gun in their hand.’” Id.
    We noted that the detective in Ordway thus “opined that [Ordway] did
    not act like those who had lawfully protected themselves but, had instead acted
    like those who were fabricating a self-protection defense.” Id. We further noted
    this “opinion of an experienced and respected police detective that [Ordway’s]
    conduct did not match the stereo-typical conduct of an innocent person acting
    11
    in self-defense authoritatively portrayed [Ordway’s] defense as a fabrication.”
    Id. at 777. We therefore reversed for a new trial given the error was not
    harmless but rather “clearly devastating to [Ordway’s] claim of self-defense.”
    Id.
    The facts before us here are starkly different. Deputy White simply
    testified that generally, most wanton endangerment cases do not involve
    shooting directly at a victim. He did not offer a broad-sweeping assessment of
    the elements of wanton endangerment and then testify that Bunch’s conduct
    did not fit within those elements. He did not testify that the facts did not fit the
    profile of a typical wanton endangerment crime. Nor did he otherwise opine as
    to the nature of Bunch’s crimes. His brief statement simply did not rise to the
    level of an express or implied opinion that Bunch’s conduct could not
    constitute wanton endangerment. We therefore find no error in the admission
    of Deputy White’s testimony.
    II.   The trial court did not err in admitting evidence regarding
    prior domestic violence incidents.
    Bunch next argues the trial court erred in admitting prior bad acts
    evidence of previous domestic violence perpetrated by Bunch against Gribbins.
    That evidence included Gribbins’ testimony that Bunch physically assaulted
    her during a Fourth of July Party in 2018 and that in August 2018 he
    forcefully pushed her into a jacuzzi causing her to badly bite her tongue.
    Gribbins further testified to a January 2019 incident in which Bunch verbally
    and physically attacked her for wearing a knee-length nightgown during a brief
    visit by Marple.
    12
    Gribbins recorded the January 2019 incident on her phone and the
    prosecution played that audio recording for the jury. Gribbins testified that
    though the recording was muffled, Bunch stated at one point during the
    incident that he would “blow [her] f’ing brains out.” The day after this incident,
    Gribbins recorded a phone call with Bunch in which she informed him she was
    leaving. Bunch told Gribbins during the call “you bring the fucking law and I
    will put a bullet through your goddamn head personally.” The prosecution
    played this recording for the jury as well.
    The trial court admitted evidence regarding these July and August 2018
    and January 2019 incidents under KRE4 404(b) for the purpose of proving
    intent and motive. The trial court also read a statement informing the jury that
    Bunch was convicted of one count of first-degree wanton endangerment, three
    counts of terroristic threatening, and four counts of fourth-degree assault as a
    result of the incidents. The prosecution elicited testimony that Bunch had pled
    guilty to those charges.
    Gribbins also testified to other domestic violence beyond the scope of
    the trial court’s KRE 404(b) ruling, including an incident in which Bunch
    became extremely angry after she overfilled a cat food bowl, his efforts to
    isolate her by giving her van to his parents, and his accusations that Gribbins
    was having sex with numerous other men including her brothers. Gribbins
    also testified she continued to have sex with Bunch even after ending her
    relationship with him because she knew based on his explosive behavior she
    4   Kentucky Rule of Evidence.
    13
    would get hurt if she did not. She also told the jury she ultimately blocked
    Bunch on all platforms because he was harassing and stalking her. She
    further testified she also made efforts to keep her location secret from Bunch
    because she knew he would hurt her children and her family.
    Bunch moved for a mistrial because Gribbins’ testimony as to these
    additional incidents went beyond the trial court’s ruling that the July and
    August 2018 and January 2019 incidents were admissible under KRE 404(b).
    The trial court agreed the evidence should have come in but denied the motion.
    Bunch did not seek an admonition to the jury to disregard the evidence
    regarding these additional incidents.
    A. Bunch’s allegation of error is preserved.
    Before proceeding to the merits we must again address the
    Commonwealth’s contention that Bunch has failed to preserve an alleged error,
    this time as to admission of the July and August 2018 and January 2019
    incidents. Before trial, the Court heard argument via Zoom regarding the
    Commonwealth’s intention to introduce that evidence pursuant to KRE 404(b).
    However the trial court did not record the hearing. Nor did Bunch prepare a
    narrative summary of the hearing for use in this appeal as permitted by Civil
    Rule (“CR”) 75.135. The Commonwealth now contends Bunch therefore has not
    5  CR 75.13 applied at the time Bunch could have prepared a narrative summary
    for use in this appeal. That Rule was superseded by Rule of Appellate Procedure
    (“RAP”) 25 on January 1, 2023. RAP 25 now sets forth the procedure for inclusion of a
    narrative statement in the record on appeal as a supplement to or in lieu of an
    unavailable or insufficient official record of trial court proceedings. Pursuant to our
    Order In re: Applicability of the New Rules of Appellate Procedure (Dec. 29, 2022), all
    14
    preserved his objection because the record contains neither a recording of the
    pre-trial Zoom hearing nor a narrative summary of that hearing.
    We will find an objection as to the admission or exclusion of evidence
    preserved only if “a timely objection or motion to strike appears of record,
    stating the specific ground of objection, if the specific ground was not apparent
    from the context.” KRE 103(a)(1). Here, the trial court noted on the record at
    trial that Bunch’s objection to the admission of the KRE 404(b) evidence was
    preserved. While the argument of Bunch’s counsel as to the specific grounds
    for their objection does not appear in the record, the trial court noted the
    morning of trial that they argued at the Zoom hearing the evidence was too
    temporally remote to be admitted under KRE 404(b). Thus, because the record
    indicates both Bunch’s objection to admission of the KRE 404(b) evidence and
    the specific grounds for that objection, we conclude that this issue is
    preserved.
    We briefly pause to note however that Bunch was not without recourse
    for the trial court’s failure to record the Zoom hearing. Both our Civil Rules
    then in effect and our new Rules of Appellate Procedure afford litigants the
    ability to prepare a narrative summary to cure a deficiency or omission from
    the record. CR 75.13; RAP 25. Curiously, Bunch’s counsel did not avail
    themselves of this remedy. Though we were nonetheless able to find the
    statement and nature of Bunch’s objection in the record, preparation of a
    matters pending on or filed after January 1, 2023 are governed under the new Rules of
    Appellate Procedure.
    15
    narrative statement is the strongly preferred procedure to cure deficiencies,
    insufficiencies, or omissions from the record. This is particularly so given that
    in considering an appeal, we are under no obligation to search the record for a
    party’s preservation of error. See Phelps v. Louisville Water Co., 
    103 S.W.3d 46
    ,
    53 (Ky. 2003).
    B. The July and August 2018 and January 2019 domestic violence
    incidents, recordings, and convictions were admissible under KRE
    404(b) to show intent.
    Having determined the issue is preserved, we now consider the merits of
    Bunch’s argument. Bunch contends the trial court erred in admitting evidence
    of the July and August 2018 and January 2019 incidents and Bunch’s
    resulting convictions. Bunch asserts the prejudicial effect of that evidence
    substantially outweighed its probative value given the temporal separation of
    nine to fifteen months between those incidents and the crime at issue here.
    Bunch maintains the trial court also admitted too much evidence regarding
    these incidents, and in particular should have excluded the two recorded
    phone calls because they were inflammatory and difficult to hear.
    KRE 404(b) governs the admissibility of evidence of other crimes, wrongs,
    or acts. It provides that such evidence is “not admissible to prove the
    character of a person in order to show action in conformity therewith.”
    However, the Rule also provides two circumstances in which evidence of other
    crimes, wrongs, or acts may be admissible. First, such evidence may be
    admissible if “offered for some other purpose, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence of
    16
    mistake or accident.” KRE 404(b)(1). Second, such evidence 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).
    In determining whether to admit evidence of other crimes, wrongs, or
    acts under KRE 404(b), a trial court must consider the three factors of
    relevance, probativeness, and prejudice as set forth in Bell v. Commonwealth,
    
    875 S.W.2d 882
     (Ky. 1994). That is, the trial court must consider 1) whether
    the proffered evidence is relevant for some purpose other than to prove the
    defendant’s criminal disposition, 2) whether evidence of the other crime, wrong,
    or act is sufficiently probative of its commission by the defendant, and
    3) whether the potential prejudice from admission of the proffered evidence
    substantially outweighs its probative value. Bell, 875 S.W.2d at 889-91. In
    considering these factors, the trial court “must apply [KRE 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.” Id. at 889. We review
    a trial court’s decision to admit evidence under KRE 404(b) for abuse of
    discretion. Anderson v. Commonwealth, 
    231 S.W.3d 117
    , 119 (Ky. 2007).
    We find no abuse of discretion in the trial court’s application of KRE
    404(b) here. As to the first Bell factor of relevance, the trial court must
    determine whether admission of the evidence of other crimes, wrongs, or acts
    would be in furtherance of one of the permissible purposes under KRE
    404(b)(1). Southworth v. Commonwealth, 
    435 S.W.3d 32
    , 49 (Ky. 2014). The
    17
    trial court must also find that the evidence materially bears on an element of
    the charged offense or some other fact in dispute. Jenkins v. Commonwealth,
    
    496 S.W.3d 435
    , 457 (Ky. 2016).
    The trial court did not err in finding the Bell relevance factor satisfied
    here. We have long held that “threats against the victim of a crime are
    probative of the defendant’s motive and intent to commit the crime.” Sherroan
    v. Commonwealth, 
    142 S.W.3d 7
    , 18 (Ky. 2004). Likewise, “‘evidence of similar
    acts perpetrated against the same victim are almost always admissible’” under
    KRE 404(b). Harp v. Commonwealth, 
    266 S.W.3d 813
    , 822 (Ky. 2008) (quoting
    Noel v. Commonwealth, 
    76 S.W.3d 923
    , 931 (Ky. 2002)).
    Such was the case here. The July and August 2018 and January 2019
    domestic violence incidents, recordings, and subsequent related convictions
    were unquestionably relevant to the charged offense of attempted murder
    insofar as they supported the Commonwealth’s case that Bunch shot at
    Gribbins with an intent to kill her. In the July 2018 incident Bunch physically
    assaulted Gribbins. In August 2018 he again physically assaulted her, this
    time pushing her into a jacuzzi and causing her to badly bite her tongue. In
    January 2019 he struck Gribbins and threatened to “blow her f’ing brains out.”
    The next day he was recorded telling her he would “put a bullet through [her]
    goddamn head personally.” This evidence of Bunch’s past violence and threats
    to kill Gribbins was plainly relevant to show his intent to kill her on the day of
    the shooting. The evidence was also materially related to the disputed issue of
    Bunch’s intent, given his raising of a defense that he intended only to scare
    18
    rather than kill Gribbins and Marple. Thus, because the evidence served a
    proper purpose under KRE 404(b) of proving intent and bore directly on a
    material issue in the case, the trial court did not abuse its discretion in finding
    the Bell factor of relevance satisfied.
    The second Bell factor requires a trial court to consider whether the
    evidence is sufficiently probative of the defendant’s commission of the other
    alleged crimes, wrongs, and acts, i.e. whether “the jury could reasonably
    conclude that the act[s] occurred and that the defendant was the actor.” Davis
    v. Commonwealth, 
    147 S.W.3d 709
    , 724-25 (Ky. 2005). Here the evidence
    included Bunch’s criminal convictions after pleading guilty to the conduct at
    issue. There was thus no question that Bunch engaged in the prior bad acts
    the Commonwealth sought to introduce.
    We also find no abuse of discretion in the trial court’s consideration of
    the third Bell factor of prejudice. This factor requires the trial court to ask
    whether “the tendency of the evidence [is] so strongly to lead the jury into
    improper character inferences that that tendency ‘substantially outweigh[s]
    [the evidence’s] probative value’ with regard to its proper uses.” Jenkins, 496
    S.W.3d at 457 (quoting Bell, 875 S.W.2d at 890). Here, evidence of the July
    and August 2018 and January 2019 domestic violence was undoubtedly
    prejudicial to Bunch, given its depiction of his pattern of repeated death
    threats and physical violence against Gribbins. However, evidence of that
    domestic violence was also highly relevant to the issue of Bunch’s intent in
    firing at the victims, particularly given both that it involved the same
    19
    perpetrator and victim and his adoption of a defense that he intended only to
    scare rather than harm or kill Gribbins and Marple.
    Nor were the incidents so temporally remote that their prejudicial effect
    substantially outweighed their probative value. See Woodlee v. Commonwealth,
    
    306 S.W.3d 461
    , 465 (Ky. 2010) (noting that temporal remoteness “is a factor
    to be considered ‘when balancing the probative value of [the bad act evidence]
    and the undue prejudice it caused.’”) (quoting Clark v. Commonwealth, 
    223 S.W.3d 90
    , 100 (Ky. 2007)). The incidents occurred over a period of six to
    seven months beginning little more than a year before the crime at issue. We
    cannot find under the facts of this case that the introduction of evidence of
    such recent death threats and physical violence resulted in undue prejudice to
    Bunch. In sum, while the prior bad acts evidence was undoubtedly prejudicial
    to Bunch, the trial court did not abuse its discretion in concluding the
    resulting prejudice did not substantially outweigh the significant probative
    value of these acts of domestic violence.
    Finally, Bunch contends that at a minimum the recordings of the
    January 2019 incidents should have been excluded. More particularly, Bunch
    argues the recordings are difficult to hear and there is a lack of trustworthiness
    in Gribbins’ testimony that Bunch said he would “blow [her] f’ing brains out”
    during one of the recorded incidents.
    A trial court has broad discretion in determining whether a recording is
    of sufficient quality to permit its admission as evidence. Gordon v.
    Commonwealth, 
    916 S.W.2d 176
    , 180 (Ky. 1995). We have reviewed both
    20
    recordings and find no abuse of discretion in the trial court’s conclusion they
    were of sufficient quality to permit admission.
    Nor do we find Gribbins’ testimony in conjunction with the playing of one
    of the recordings improper. A witness may provide narrative testimony in
    conjunction with the playing of a recording, but such testimony may not
    become interpretive. 
    Id.
     (“It is for the jury to determine as best it can what is
    revealed in the tape recording without embellishment or interpretation by a
    witness.”). Thus, a witness may not testify (and a proffered transcript may not
    indicate) that the recording reveals statements not otherwise intelligible from
    the recording itself. Taylor v. Commonwealth, 
    611 S.W.3d 730
    , 744 (Ky. 2020).
    Otherwise a party’s proffered interpretation of inaudible or unintelligible
    portions of the recording would give that party “an unfair advantage in swaying
    the jury in favor of one interpretation” of the recording. 
    Id.
     Rather, the witness
    or transcript should acknowledge that the portion is simply inaudible or
    unintelligible. See Norton v. Commonwealth, 
    890 S.W.2d 632
    , 637 (Ky. App.
    1994). And of course, “[a]s with any participant in a conversation, [the] . . .
    witness [is] entitled to testify as to his recollection of what was said.” Gordon,
    916 S.W.2d at 180 (emphasis added).
    Here, Gribbins did just that. When the recording of the January 2019
    incident concluded, the prosecutor asked Gribbins if she was assaulted and
    what happened. Gribbins responded “he hit me, and then he went in the other
    room and he got a gun. And it’s muffled. He told me he’d blow my f’ing brains
    out.” Gribbins did not purport to inform the jury the recording revealed Bunch
    21
    making such a statement. To the contrary, she acknowledged the recording
    was difficult to hear and then proceeded to testify as to what she heard Bunch
    say at the time the recording was made. This was entirely permissible evidence
    of Gribbins’ recollection of Bunch’s statement based upon her participation in
    the conversation. There was no error in the admission of that testimony.
    C. The accidental admission of additional prior bad acts by Bunch
    does not mandate reversal.
    Gribbins also testified to additional prior bad acts by Bunch that were
    beyond the scope of the trial court’s ruling regarding evidence admissible under
    KRE 404(b). First, Gribbins testified that Bunch was explosive and violent,
    that he stalked her and she felt the need to protect her family from him, and
    that she had sex with him out of a fear of violent repercussions for refusing to
    do so. Bunch acknowledges that he did not object at trial to the admission of
    these statements and therefore requests palpable error review. RCr6 10.26.
    Under RCr 10.26, “[a] palpable error which affects the substantial rights
    of a party may be considered . . . 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.” In determining whether an error is palpable, we consider
    “whether on the whole case there is a substantial possibility that
    the result would have been any different.” To be palpable, an error
    must be “easily perceptible, plain, obvious and readily noticeable.”
    A palpable error must be so grave that, if uncorrected, it would
    seriously affect the fairness of the proceedings. “It should be so
    egregious that it jumps off the page . . . and cries out for relief.”
    6   Rule of Criminal Procedure.
    22
    Davis v. Commonwealth, 
    620 S.W.3d 16
    , 30 (Ky. 2021) (citations omitted).
    Even where an error is palpable, relief is warranted only where it results in
    manifest injustice. Commonwealth v. Caudill, 
    540 S.W.3d 364
    , 367 (Ky. 2018).
    An error results in manifest injustice if it “so seriously affected the fairness,
    integrity, or public reputation of the proceeding as to be ‘shocking or
    jurisprudentially intolerable.’” Conrad v. Commonwealth, 
    534 S.W.3d 779
    , 783
    (Ky. 2017) (quoting Martin v. Commonwealth, 
    207 S.W.3d 1
    , 4 (Ky. 2006)).
    We do not find that Gribbins’ testimony seriously affected the fairness of
    the trial or that without such testimony there is a substantial possibility the
    result would have been any different. Her descriptions of Bunch’s explosive,
    violent, threatening, and controlling behaviors were merely cumulative. Those
    traits were evident from the July and August 2018 and January 2019
    incidents, recordings, and convictions. Gribbins’ testimony added nothing the
    jury could not already glean from the duly admitted KRE 404(b) evidence. We
    therefore find no palpable error or manifest injustice in the accidental
    admission of these additional prior bad acts.
    Bunch also contends reversible error occurred when Gribbins testified he
    became angry with her for overfilling a cat food bowl, took her van and gave it
    to his parents, and accused her of having sex with numerous men including
    her brothers. This testimony exceeded the scope of evidence found admissible
    by the trial court under KRE 404(b) and Bunch immediately objected.
    However, he failed to request an admonition to the jury to disregard the
    testimony.
    23
    “The cure for accidental admission of prior bad acts is an admonition to
    the jury to disregard the testimony.” Boyd v. Commonwealth, 
    439 S.W.3d 126
    ,
    132 (Ky. 2014). “When an admonition is sufficient to cure an error and the
    defendant fails to ask for one, we will not review the error.” Id. at 133. An
    admonition is sufficient unless either 1) there is overwhelming probability that
    the jury is incapable of following the admonition and a strong likelihood the
    impermissible evidence would be devastating to the defendant, or 2) the
    testimony was made in response to a question that was both not premised on a
    factual basis and inflammatory or highly prejudicial. Sherroan, 142 S.W.3d at
    17.
    Here, Gribbins’ testimony regarding these additional incidents was brief
    and there is no basis to conclude the jury could not have followed an
    admonition to disregard it. Though certainly not flattering, the evidence also
    was not devastating to Bunch given the other properly admitted evidence of his
    pattern of domestic violence. The testimony was responsive to very general
    questions that were not inflammatory, prejudicial, or lacking in factual basis,
    including “tell me about your relationship,” “tell me about your van,” and “what
    began to happen [later in the relationship]?” An admonition thus would have
    been sufficient to cure the error. As we have noted, a mistrial should be
    granted only “when the error ‘is of such magnitude that a litigant would be
    denied a fair and impartial trial and the prejudicial effect could be removed in
    no other way.’” Brown v. Commonwealth, 
    416 S.W.3d 302
    , 312 (Ky. 2013)
    (quoting Matthews v. Commonwealth, 
    163 S.W.3d 11
    , 17 (Ky.
    24
    2005)). Moreover, a mistrial is “‘an extreme remedy and should be resorted to
    only when there is a fundamental defect in the proceedings and there is a
    ‘manifest necessity for such an action.’” 
    Id.
     (quoting Woodward v.
    Commonwealth, 
    147 S.W.3d 63
    , 68 (Ky. 2004)). Thus, because an admonition
    would have cured the error and because the testimony in any event was brief
    and not devastating given the other properly admitted evidence of Bunch’s
    pattern of domestic violence, we find no abuse of discretion in the trial court’s
    denial of the motion for mistrial.
    III.   Bunch was not entitled to lesser-included offense instructions
    for wanton endangerment in the second degree or attempted
    first-degree assault under EED.
    Finally, Bunch argues the trial court erred in refusing to give the jury
    lesser-included offense instructions on second-degree wanton endangerment
    and attempted first-degree assault under EED. A trial court should instruct on
    a lesser-included offense if, and only if, under the evidence presented a
    reasonable juror could have reasonable doubt as to the defendant’s guilt for the
    greater charge but find beyond a reasonable doubt that the defendant is guilty
    of the lesser charge. Allen v. Commonwealth, 
    338 S.W.3d 252
    , 255 (Ky. 2011).
    On appeal, we review allegations that a trial court erred in refusing a requested
    jury instruction for abuse of discretion. Caudill, 540 S.W.3d at 367. In so
    doing, we construe the evidence in favor of the proponent of the instruction
    and ask “whether a reasonable juror could acquit of the greater charge but
    convict of the lesser.” Allen, 338 S.W.3d at 255.
    25
    Bunch contends he was entitled to a second-degree wanton
    endangerment instruction as to Gribbins and Marple given his statements that
    he intended only to scare rather than kill them and because he was a good
    shot. First-degree wanton endangerment differs from second-degree wanton
    endangerment in
    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
    wantonness.” 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 (citation omitted). The evidence at trial was that
    Bunch fired shots directly through the doorway where Gribbins and Marple
    had just been standing as they ran back into the home. At least one shot flew
    between Gribbins and Marple and Gribbins was struck by exploding glass.
    Even crediting evidence that Bunch was a “good shot,” no reasonable juror
    could have reasonable doubt that in firing directly at the victims and nearly
    hitting them, Bunch manifested extreme indifference to the value of human life
    or that his conduct created a substantial danger of death or serious physical
    injury rather than mere physical injury. See Combs v. Commonwealth, 
    652 S.W.2d 859
    , 860-61 (Ky. 1983) (holding that trial court properly refused to
    instruct on second-degree wanton endangerment where defendant fired at and
    in the immediate vicinity of victims). The trial court therefore did not abuse its
    discretion in refusing Bunch’s request for lesser-included offense instructions
    on second-degree wanton endangerment as to Gribbins and Marple.
    26
    Bunch contends he was also entitled to a second-degree wanton
    endangerment instruction as to Veda given both his statements that he did not
    know she was in the home at the time of the shooting and her distance from
    his firing of the shots. We disagree.
    First, Bunch’s alleged lack of awareness that Veda was in the home is
    immaterial because liability for his knowingly wanton creation of danger to
    Gribbins and Marple transfers as a matter of law to his creation of danger to
    Veda, whether he was aware of the risk to her or not.7 KRS 501.060 provides
    that “[w]hen wantonly . . . causing a particular result is an element of an
    offense, the element is not established if the actual result is not within the risk
    of which the actor is aware . . . unless [t]he actual result differs from the
    probable result only in the respect that a different person [is] affected.” KRS
    501.060(3)(a) (emphasis added). Thus, in the context of wanton endangerment,
    if a defendant engages in wanton conduct creating a substantial danger of
    injury to persons he is aware will face such risk, he may also be held liable for
    the same resulting danger to other persons he does not know he has placed at
    risk. Id.; KRS 508.060-070; see also Leslie W. Abramson, 10 Kentucky
    Practice, Substantive Criminal Law, § 2:25 (3d ed. 2010) (“Where the actual
    result involves harm [or danger] to a different person or different property than
    was risked, and the defendant was aware of the risk, his wanton conduct is
    7In considering the propriety of lesser-included offense instructions, we
    construe the evidence in favor of Bunch as the proponent of those instructions. Allen,
    338 S.W.3d at 255. We therefore accept for purposes of this analysis his statement to
    Deputy White that he was unaware Veda was in the home, despite the fact she may
    have been on the front porch when he drove by the home shortly before the shooting.
    27
    regarded as the cause of the result.”). As such, because Bunch knowingly
    engaged in conduct creating a substantial danger of death or serious physical
    injury to Gribbins and Marple, he also may be held liable for the resulting risk
    to Veda even if he did not know she was in the home.
    Second, no reasonable juror could have found that in shooting blindly
    into the home, Bunch did not manifest extreme indifference to human life. Nor
    could a juror have reasonable doubt that in shooting into the upstairs window
    on the same floor as Veda, Bunch created a substantial danger of death or
    serious physical injury to her. We recently noted that in cases involving
    shootings, there are “many variables affecting the risk that a bystander will be
    seriously injured, including movement of the target, distraction of the shooter,
    and environmental elements such as wind.” Hall v. Commonwealth, 
    645 S.W.3d 383
    , 394 (Ky. 2022). We also acknowledged that while the skill of the
    shooter may be relevant, other factors may outweigh that consideration. 
    Id.
    Here, Veda was an eight-year-old child separated from her father in a different
    part of the home when shooting broke out. Such circumstances presented a
    significant risk that Veda would run to find her father. Bunch blindly shot into
    the level of the home where Veda was located and through which she might
    have run. He thus also created a substantial danger that Veda would run
    directly into the line of gunfire. Had she been shot, it is highly likely her
    injuries would have been serious or fatal. Given these facts, no reasonable
    juror could have had reasonable doubt that Bunch created a substantial
    danger of death or serious physical injury to Veda. As such, the trial court did
    28
    not abuse its discretion in refusing Bunch’s request for a lesser-included
    offense instruction on second-degree wanton endangerment as to Veda.
    Bunch also argues the trial court erred in refusing his request for a
    lesser-included offense instruction on attempted first-degree assault under
    EED. Bunch asserts the attempted first-degree manslaughter instruction
    encompassed only the theory that he intended to kill under EED, and that an
    attempted first-degree assault instruction would have allowed for a finding that
    he intended only to harm. Under the facts of this case, the jury could have
    found Bunch guilty of attempted first-degree assault under EED only if it found
    1) he intended to cause serious physical injury by means of a deadly weapon or
    dangerous instrument, 2) he intentionally took a substantial step in a course of
    conduct planned to culminate in that result, and 3) he did so under the
    influence of extreme emotional disturbance. KRS 508.010; KRS 506.010; KRS
    508.040. However, there was no evidence at trial to support a finding that
    Bunch intended to cause serious physical injury. Bunch shot directly at
    Gribbins and Marple multiple times with a gun, with at least one bullet flying
    directly between them as they ran in fear. The Commonwealth presented
    previous threats by Bunch to kill Gribbins. Bunch defended by arguing he
    only meant to scare Gribbins and Marple, pointing to his repeated statements
    to that effect during his statement to Deputy White. However there was no
    proof that in shooting directly at his victims, Bunch had an intention to
    seriously injure but not kill them. Thus, because a jury could not have found
    the required element of an intention to cause serious physical injury as
    29
    required for a conviction of attempted first-degree assault, the trial court
    properly denied Bunch’s request for such an instruction.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment and sentence of the
    Washington Circuit Court.
    All sitting. All concur. Conley, J., also concurs by separate opinion in
    which Thompson, J., joins.
    CONLEY, J., CONCURRING: I fully concur with the Court’s conclusion. I
    write separately to briefly address any seeming contradiction between my
    affirming the denial of the second-degree wanton endangerment instruction in
    this case, and the reversal of the trial court on that very same issue in Dwight
    Taylor v. Commonwealth, 2021-SC-0483, also rendered today.
    Kentucky law has held that firing a weapon wantonly in the immediate
    vicinity of a person is an act that “manifested an extreme indifference to the
    value of human life and, likewise, a reasonable juror could not doubt that his
    conduct created a substantial danger of death or serious physical injury to
    another person.” Combs v. Commonwealth, 
    652 S.W.2d 859
    , 861 (Ky. 1983).
    Similarly, we have held firing a gun into a closed door with a person behind it
    merited a first-degree wanton endangerment instruction. Paulley v.
    Commonwealth, 
    323 S.W.3d 715
    , 724 (Ky. 2010). And in like manner, firing
    blindly into a residential home was also held to warrant a first-degree wanton
    endangerment charge for every person in the homes at the time of the shooting.
    West v. Commonwealth, 
    161 S.W.3d 331
    , 336-37 (Ky. App. 2004). Finally, we
    30
    have stated that wantonly firing a weapon in the immediate vicinity of a person
    or blindly into a house are “quintessential examples of first-degree wanton
    endangerment.” Swan v. Commonwealth, 
    384 S.W.3d 77
    , 103 (Ky. 2012).
    Therefore, I agree with the Court’s analysis that Bunch’s actions did not merit
    a second-degree wanton endangerment instruction.
    Thompson, J., joins.
    COUNSEL FOR APPELLANT:
    Emily Holt Rhorer
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Daniel Cameron
    Attorney General of Kentucky
    Courtney J. Hightower
    Assistant Attorney General
    31