RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000159-MR
AUSTIN MOORE APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 17-CR-00250
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Austin Moore appeals from a judgment of the Franklin
Circuit Court sentencing him to eight years of imprisonment after a jury found him
guilty of operating a motor vehicle under the influence of alcohol/drugs, wanton
endangerment in the first degree, and manslaughter in the second degree. Moore
raises five arguments: 1) the trial court abused its discretion by admitting into evidence the video from Alyssa Hutcherson’s cell phone; 2) the trial court erred by
permitting Deputy Daniel Wills to testify about his previous encounter with
Moore; 3) the trial court erred in denying his motion for a new trial; 4) the trial
court erred by denying Moore’s request to call a retired police officer as an expert
witness; and 5) the trial court abused its discretion by instructing the jury on lesser-
included offenses. We conclude there was no error and affirm.
In June 2017, Moore socialized at his family farm with his friends,
Alyssa Hutcherson and Brittany Sutcliffe. It is uncontested that all three drank
alcohol and smoked marijuana. In the early hours of the morning, the three went to
a convenience store to get cigarettes and left for the store in Moore’s vehicle.
Moore drove, Hutcherson sat in the front seat, and Sutcliffe sat in the backseat.
Sutcliffe testified Moore was driving “fast” and Hutcherson told him to slow down.
Moore drove off the road and struck a tree, killing Hutcherson.
Another motorist, Andrew Wilson, stopped at the accident scene and
called 911. Wilson testified Moore smelled of alcohol and repeatedly said he had
messed up and should not have been driving so fast. When asked to describe
Moore’s conduct, Wilson described Moore as bouncing around “like he just won
the lottery.” Wilson testified “any sane person” could have seen that Moore was
“under the influence of something.”
-2- Among the first responders to arrive was Deputy Daniel Wills (also
sometimes referred to as “Willis” in the record). Like Wilson, Deputy Wills
testified that he smelled the strong odor of alcohol on Moore. Without objection,
Deputy Wills also testified that Moore’s pupils were dilated, and his eyes were red,
watery, and bloodshot, which was indicative of marijuana usage.1 When Deputy
Wills asked Moore if he had been drinking Moore admitted he had had two drinks
and smoked marijuana. According to Deputy Wills, Moore failed multiple field
sobriety tests (FSTs) and so the deputy concluded Moore was impaired/under the
influence.2 Finally, Deputy Wills testified that he recently observed Moore driving
before the fatal accident and told him that either he would have to be put in a body
bag or he would be going to prison for killing someone.
Blood testing showed Moore had amphetamines in his blood, but the
precise level could not be determined by current testing methods. Moore’s blood
1 Even though Deputy Wills offered no scientific basis to link, for example, bloodshot eyes and marijuana usage, Moore did not object. Thus, we will not explore the issue beyond noting some courts and commentators have criticized linking bloodshot eyes with suspicion of criminal activity. See, e.g., Joseph B. Suhre and Wilbur M. Zevely, Kentucky Driving Under the Influence Law § 3.9 (2019-2020 ed.) (“Police allegations of bloodshot or watery eyes present little practical benefit to the state’s case. These conditions can occur for so many reasons other than intoxication that their contribution to the state’s case is minimal. These days and times few people have eyes that are not bloodshot. It is a part of life.”); Ferris v. State, 735 A.2d 491, 510 (Md. 1999) (holding that “[i]n the absence of any testimony or scientific evidence as to some direct, observable correlation between eyes that are bloodshot, even extremely so, and drug usage or, intuitively less likely, drug possession, we find this fact to carry little, if any, weight”). 2 Our Supreme Court recently declined to find palpable error when an officer described FSTs as “tests” which a defendant “failed.” Iraola-Lovaco v. Commonwealth, 586 S.W.3d 241, 246-47 (Ky. 2019).
-3- also had an alcohol level of .011, which equates with approximately .027 at the
time of the accident. Dr. Gregory Davis, M.D., from the University of Kentucky
College of Medicine, testified without objection as an expert on behalf of the
Commonwealth. According to Dr. Davis, Moore’s alcohol level roughly
corresponds with having had one drink. Dr. Davis testified, again without
objection, that Moore’s blood level of 6 ng/ml, plus or minus 1 ng/ml, of Delta-9
THC (the active ingredient in marijuana) would have caused him to suffer some
degree of cognitive impairment.3 Also, Dr. Davis testified that combining alcohol
and marijuana is akin to adding lighter fluid to a fire.
Moore offered his own expert, Mike Ward, a retiree from the medical
examiner’s office in Frankfort with a master’s degree in toxicology and one in drug
chemistry. Ward testified that “all bets were off” regarding a firm correlation
between impairment and the level of THC in a person’s blood. Ward agreed with
the proposition that a person with 2 ng/ml of THC could be more impaired than
someone with 10 ng/ml. However, when asked if he agreed that 6 ng/ml was a
significant level of THC, Ward responded that studies have shown such a level can
have an impact on driving. Ward also did not disagree with Dr. Davis’s testimony
3 A forensic scientist specialist also testified as an expert that Moore’s level of THC was considered “significant.” When the Commonwealth asked if she knew what level of THC produced impairment, she responded-- without objection--that “research indicates anything above a one to two nanograms per milliliter.” As with the testimony of Dr. Davis, there was no objection to the admission of the testimony as to the effect of THC on the degree of impairment and it is not an issue raised on appeal. Therefore, it is not addressed in this opinion.
-4- that at the time of the collision, Moore’s THC level would have been at least 6
ng/ml, which would have affected Moore’s central nervous system to some degree.
Finally, Ward testified that combining alcohol, marijuana, and amphetamines
increases the risk of adversely impacting the ability to drive.
Justin Benton testified that later in the morning of the crash, he
discovered Hutcherson’s cell phone at the accident scene. Benton said he did not
view or edit the phone’s contents before giving it to Hutcherson’s father.
Hutcherson’s father testified that he gave the phone to his sister, who discovered
on it a ten-second-long video filmed the night of the accident. Hutcherson’s father
and sister each denied having altered the phone/video. After a couple of days,
Hutcherson’s father gave the phone to the sheriff’s office.
That video shows Moore sitting in the driver’s seat leaning his face
toward an unidentifiable object in his hands. There are no audio references to
drugs nor can any be seen. Nonetheless, the Commonwealth posited that the video
showed Moore about to snort Adderall, an amphetamine for which he had a
prescription. Over Moore’s objection, the video was played to the jury. An empty
Adderall bottle was found in Moore’s vehicle. Sutcliffe testified she did not see
Moore consume Adderall that night, though she described him as being “hyper.”
Moore objected to instructing the jury on lesser-included offenses to
the murder charge, but the trial court instructed the jury on manslaughter in the
-5- second degree and reckless homicide. The jury found Moore guilty of DUI,
wanton endangerment in the first degree, and manslaughter in the second degree
and recommended a total of eight years’ imprisonment.
Moore filed a motion for a new trial, arguing the Commonwealth
improperly failed to preserve recordings of Sutcliffe’s interviews at the Franklin
County Sheriff’s Office. The trial court denied the motion for a new trial and
sentenced Moore in accordance with the jury’s recommendations, after which he
filed this appeal.
The Commonwealth argues that Moore’s brief should be stricken
because it does not comply with Kentucky Rule of Civil Procedure (CR) 76.12.
Although we agree that Moore’s brief contains minimal citations to the record and
his arguments are, for the most part, not well developed, “dismissal based upon a
failure to comply with CR 76.12 is not automatic.” Baker v. Campbell County Bd.
of Educ., 180 S.W.3d 479, 482 (Ky.App. 2005) (citation omitted). We decline to
harshly penalize Moore by striking the brief. We strongly prefer to decide appeals
on the merits “whenever possible[,]” C.M.C. v. A.L.W., 180 S.W.3d 485, 490
(Ky.App. 2005) (citation omitted), and, therefore, review Moore’s issues on the
merits.
Moore argues that the trial court abused its discretion by permitting
the Commonwealth to play the video from Hutcherson’s phone. We review a trial
-6- court’s evidentiary decision for abuse of discretion, which focuses on whether the
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Engles v. Commonwealth, 373 S.W.3d 456, 457 (Ky.App. 2012).
Moore contends the Commonwealth did not present a sufficient chain
of custody. Kentucky Rule of Evidence (KRE) 901(a) provides that “[t]he
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Or, in other words, “a proper foundation
requires the proponent to prove that the proffered evidence was the same evidence
actually involved in the event in question and that it remains materially unchanged
from the time of the event until its admission.” Thomas v. Commonwealth, 153
S.W.3d 772, 779 (Ky. 2004) (citations omitted). The Commonwealth presented
unchallenged testimony that the phone was Hutcherson’s and the video was found
on her phone. The question is whether the video was “materially unchanged from
the time of the event until its admission.” Id. That issue involves determining
whether the Commonwealth presented a sufficient chain of custody.
“[A]n unbroken chain of custody is generally unnecessary” as “[a]ny
gaps go to the weight, rather than the admissibility of the evidence, and the
proponent need only demonstrate a reasonable probability that it has not been
altered in any material respect.” Id. at 781 (citations omitted). The
-7- Commonwealth presented evidence showing where, when, and how the phone was
found, along with denials from those who possessed the phone that they had
altered it or its contents.
There is not a perfect chain of custody, but the chain’s gaps go to the
video’s weight, not its admissibility. Indeed, “the mere fact that evidence has been
misplaced, insecurely kept, or unstored for a significant period of time is not per se
fatal to admissibility.” Id. (citation omitted). Moore offers nothing besides the
theoretical possibility that the video might have been edited. “Speculation and
innuendo are not proper bases for an appellate court to reverse a criminal
conviction.” Chapman v. Commonwealth, 265 S.W.3d 156, 173 (Ky. 2007).
Comparing this case to the significantly more suspect chain of
custody/identification concerns in Thomas shows that the trial court did not abuse
its discretion. In Thomas, a two-year-old ingested Valium and was then fed a
mixture of milk and castor oil from a soda bottle. Thomas, 153 S.W.3d at 775.
The child was taken to a hospital where testing revealed the presence of Valium
and cocaine. Id. Five days later, a bottle from the same soda brand containing
white residue was found near where the child was fed. Id. at 778. The bottle was
stored in an attic until given to the prosecutor six days prior to trial. Id. The bottle
tested positive for cocaine. The defendant, charged with giving the child cocaine,
argued the bottle was inadmissible.
-8- Our Supreme Court affirmed the trial court’s decision to admit the
bottle into evidence, holding the Commonwealth “sufficiently linked the bottle to
the crime” by presenting evidence showing “a reasonable probability that the bottle
admitted into evidence was the instrumentality by which cocaine was introduced”
into the child. Id. at 780. Here, the video was found after the crime sooner than
was the bottle, turned over to the authorities sooner, and was not indistinguishable
and ubiquitous like a soda bottle. We find no abuse of discretion in the trial court’s
rejection of Moore’s chain of custody/identification arguments.
Moore also argues the Commonwealth did not satisfy the “best
evidence” rule. KRE 1002 provides in relevant part that “[t]o prove the content of
a . . . recording . . . the original . . . recording . . . is required, except as otherwise
provided . . . .” Moore offers no evidence to contradict the testimony that the
video played to the jury was taken unaltered from Hutcherson’s phone, which was
itself entered into evidence. KRE 1003(1) provides that a duplicate is admissible
to the same extent as an original unless, among other things, “[a] genuine question
is raised as to the authenticity of the original . . . .” Moore has not raised a genuine
question as to the authenticity of the original video. Indeed, Moore cites to no
analogous precedent to support his argument. Without belaboring the point, we
conclude the Commonwealth did not violate the best evidence rule.
-9- Moore next contends the video was inadmissible because it was
irrelevant or, alternatively, its prejudicial value outweighed its probative value. The
question is whether its prejudicial value substantially outweighed its probativeness.
“An appellate court evaluating a trial court’s balancing under KRE 403, must
consider the evidence in the light most favorable to its proponent, giving the
evidence its maximum reasonable probative force and its minimum prejudicial
value.” Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014).
Under KRE 402, relevant evidence is generally admissible while
irrelevant evidence is not. Evidence is “relevant” under KRE 401 if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Thus, “[r]elevancy is established by any showing of
probativeness, however slight.” Springer v. Commonwealth, 998 S.W.2d 439, 449
(Ky. 1999). However, under KRE 403, relevant evidence may be excluded if “its
probative value is substantially outweighed by the danger of undue prejudice . . . .”
KRE 401, 402, and 403 have a “very powerful tilt” towards admitting evidence.
Clark v. Commonwealth, 567 S.W.3d 565, 575 (Ky. 2019) (citation omitted).
Moore argues that the video did not have the tendency to make any
fact in consequence to the determination of the matter more or less probable and,
-10- therefore, is not relevant and not admissible. We agree with the Commonwealth
that the jury could have inferred the video shows Moore about to snort Adderall.
Amphetamine usage prior to/while driving, especially combined with
marijuana and alcohol consumption, is evidence of wantonness, a required element
of wanton endangerment under Kentucky Revised Statute (KRS) 508.060 and
manslaughter in the second degree under KRS 507.040. See, e.g., Berryman v.
Commonwealth, 237 S.W.3d 175, 179 (Ky. 2007) (footnote omitted) (holding in a
wanton murder case that, even though a chemist was unable to testify as to whether
Xanax traces in a defendant’s system meant the defendant was impaired at the time
of a fatal crash, “[a] reasonable inference could be drawn that Berryman was
impaired, at least somewhat, by the Xanax in his system”); Doneghy v.
Commonwealth, 410 S.W.3d 95, 103 (Ky. 2013) (holding that “operating a vehicle
in an intoxicated state is indicative of wantonness”).
The video permitted the jury to infer that Moore snorted
amphetamines. Ward testified that snorting Adderall would make its impact more
immediate and pronounced, which heightens the video’s relevancy and probative
value. More importantly, Moore also has not shown that the video’s prejudicial
impact greatly outweighed its probative value. The video did not depict conduct so
inherently distasteful that it “appeal[ed] to the jury’s sympathies, arouse[d] its
sense of horror, [or] provoke[d] its instinct to punish . . . .” Richmond v.
-11- Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017) (citation omitted). We find no
abuse of discretion regarding the video.
We note that while the video was damaging to the defense, there was
other evidence of Moore’s impairment at the time of the wreck. Dr. Davis testified
there is a multiplicative impact when alcohol and marijuana are combined. Ward
agreed combining those substances increases the risk of adversely impacting the
ability to drive. Moore also performed poorly on FSTs. Though FSTs are
arguably less useful in determining marijuana usage than alcohol usage, we agree
with the Supreme Judicial Court of Massachusetts that “[t]he lack of scientific
consensus regarding the use of standard FSTs in attempting to evaluate marijuana
intoxication does not mean [they] have no probative value” since they may help
establish “a driver’s balance, coordination, mental acuity, and other skills required
to safely operate a motor vehicle . . . .” Commonwealth v. Gerhardt, 81 N.E.3d
751, 754 (Mass. 2017). There was testimony that Moore smelled of alcohol and
Wilson testified that it was obvious Moore was under the influence. See Barnett v.
Commonwealth, 317 S.W.3d 49, 58-59 (Ky. 2010) (holding that lay witnesses may
offer testimony based upon their observations that a person was intoxicated).
Finally, Sutcliffe described Moore as acting hyped up or hyper.
Moore next argues the trial court erred by allowing Deputy Wills to
testify as to having told Moore not long before the accident that his driving would
-12- cause him to be placed in a body bag or go to prison for killing someone. Moore
cites only KRE 404(b), which, with some exceptions, renders inadmissible
“[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person
in order to show action in conformity therewith.”
As with the cell phone video, the challenged testimony of Deputy
Wills consumed only a few seconds of a multi-day trial. The testimony was
appropriately limited in scope as Deputy Wills did not elaborate on the encounter,
such as by specifying how fast Moore was driving or any charges that stemmed
from that encounter. In other words, Wills did not name any specific prior bad act.
Under KRS 501.020(3), a person acts wantonly “when he is aware of
and consciously disregards a substantial and unjustifiable risk” that a result will
occur. Deputy Wills’ testimony that he had previously warned Moore of the
calamitous consequences of speeding was relevant to show Moore consciously
disregarded the known effects of driving too fast. Although Moore persistently
argues in his brief that there was no evidence he was speeding, Sutcliffe testified
Moore was driving “fast” and that Hutcherson had asked him to slow down but he
“caught his speed back up.” In short, we find no abuse of discretion in permitting
the challenged testimony.
Turning to Moore’s next argument, it is uncontested that Sutcliffe was
interviewed multiple times prior to the trial. Her initial interview at the sheriff’s
-13- office soon after the accident was apparently not recorded by mistake and the video
record of her second interview was accidentally recorded over. She was then
interviewed twice by the Commonwealth Attorney’s office (though Moore does
not explicitly claim error regarding those interviews). Moore asserts his right to
due process was violated by his not being able to view the initial interviews,
thereby necessitating a new trial. We review a trial court’s decision denying a
motion for a new trial for abuse of discretion. Winstead v. Commonwealth, 327
S.W.3d 386, 403 n.40 (Ky. 2010).
“[G]overnment culpability is irrelevant when the Commonwealth
withholds plainly exculpatory evidence, but when the Commonwealth merely fails
to collect or preserve evidence . . . the defendant must prove bad faith.”
Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky. 2015). See also Kirk v.
Commonwealth, 6 S.W.3d 823, 826 (Ky. 1999) (citations omitted) (“Absent a
showing of bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.”). Negligence is
insufficient to show bad faith. Collins v. Commonwealth, 951 S.W.2d 569, 573
(Ky. 1997).
Moore’s conjecture to the contrary notwithstanding, it is not apparent
that Sutcliffe’s early interviews were truly exculpatory. Her testimony at trial was
mixed, with some portions favorable to Moore (such as saying she did not see him
-14- take Adderall) and some unfavorable (such as saying he drank alcohol, smoked
marijuana, acted hyped up, and had driven fast). Moore has provided no
reasonable basis to conclude Sutcliffe’s early interviews were markedly different.
Therefore, Moore must show bad faith to receive relief.
Inadvertent carelessness, such as occurred here, sounds in negligence,
absent tangible evidence of nefariousness. Moore only argues that “although it has
been claimed the failure to preserve the recordings was unintentional, the facts may
suggest otherwise.” Moore cites to no specific “facts” to “suggest otherwise.”
Moreover, Moore’s counsel was apparently aware of the lack of interview tapes
before trial and the Franklin County Sheriff testified about the lack of videos
during the trial (outside the presence of the jury). Thus, there was not a Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) violation. See
Parrish, 471 S.W.3d at 698. Finally, Moore’s counsel had the opportunity to
interview Sutcliffe prior to trial, thereby ameliorating any prejudice. Because
Moore has presented only conjecture, he has not shown bad faith and so we find no
abuse of discretion in the denial of the motion for a new trial.
Moore next contends the trial court erred by not permitting him to
offer the testimony of a retired police officer about the condition of the road where
the accident occurred. The trial court refused to allow the testimony because
-15- Moore failed to comply with the pretrial order to timely disclose the expert witness
to the Commonwealth and because the testimony would be cumulative.
Moore has not challenged the trial court’s cumulativeness conclusion,
so we may affirm on that basis alone. Second, it is uncontested that Moore failed
to comply with the pretrial order regarding disclosure of experts. Moore’s generic
argument that fundamental fairness required permitting the expert to testify is
insufficient to overcome the inherent discretion a trial court possesses to impose
reasonable sanctions for discovery violations. Jones v. Commonwealth, 237
S.W.3d 153, 157 (Ky. 2007).
Moore’s final argument is that the trial court abused its discretion by
not permitting Moore to waive his right to have the jury instructed on lesser-
included offenses. The Commonwealth generally is entitled to have the jury
instructed on lesser-included offenses, even if a defendant objects. See, e.g., Parks
v. Commonwealth, 192 S.W.3d 318, 327 (Ky. 2006). Moore has not shown the
Commonwealth agreed to join his “all or nothing” strategy. In fact, the
Commonwealth tendered lesser-included offense instructions. We find no error in
giving the challenged instructions.
For the reasons stated, the judgment of the Franklin Circuit Court is
affirmed.
-16- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Robert Rowland Andy Beshear James E. Boyd Attorney General of Kentucky Frankfort, Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky
-17-