IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 14, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0411-MR
CHASE ALLEN SIMMONS APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT V. HONORABLE JAMES A. WETHINGTON, JUDGE NO. 19-CR-01377
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury of the Daviess Circuit Court found Appellant Chase Simmons
guilty of two counts of murder and one count of assault in the second degree.
The jury recommended consecutive sentences of thirty years on each of the
murder convictions, together with a concurrent sentence of five years on the
second-degree assault conviction, for a total sentence of sixty years. The trial
court sentenced Simmons in accordance with that recommendation. Simmons
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
On May 31, 2019, high school sophomore Bailey Eubanks threw an end-
of-the-school-year party in a barn at her mother’s home in Whitesville. Eubanks and her friends spread news of the party via social media, resulting in
as many as one hundred people attending.
On the same evening, Appellant Chase Simmons, then seventeen years
old, and his friend Andrew Pierce smoked marijuana together in Owensboro.
Around 11:30 p.m., Pierce and Simmons left in Pierce’s car to head to the
party. Simmons, who was wearing a black zip-up hoodie and black pants,
called his friend Savannah Helm and told her he had learned Jasper “Rex”
Brown was at the party. Helm testified there was bad blood between Simmons
and Brown because Simmons believed Brown had robbed one of his friends.
When Pierce and Simmons arrived at the party around midnight,
Simmons asked Pierce to wait in the car. A few minutes later, numerous
gunshots rang out. One witness testified the shooter was a white male dressed
in black. Another testified the shooter was wearing a black hoodie and had
white hands, while a third witness told police the shooter was Black. 1 Three
teenage boys—Brown, Amarius “Mari” Winstead, and Tyler Glover—were shot.
Brown and Winstead died soon after, while Glover had surgery and survived
without long-term injuries.
Simmons returned to Pierce’s car soon after the shootings and told him
to “go, go, go!” While Pierce did not recall seeing Simmons with a gun on the
way to the party, he testified he saw Simmons holding a Glock on the ride back
to Owensboro.
1 Simmons is Caucasian.
2 While returning to Owensboro, Simmons called Helm via FaceTime and
told her he had killed Brown. Helm’s friends could hear the conversation
because the call was played over the car’s speakers. One of those friends
thought Simmons sounded “messed up” during the call. Another recalled
Simmons texting Helm that evening, saying he was on acid. Helm testified she
observed during the call that Simmons was wearing a black zip-up hoodie.
Simmons told Pierce he did not want to go back home and ultimately
directed Pierce to the St. Anthony trailer park where April Rednour lived.
Pierce testified that when they arrived at Rednour’s residence Simmons put a
Glock in a baggie on the counter, though Rednour did not see Simmons with
any type of weapon.
Rednour did recall that Simmons was “tripping acid” and that he said
something about shooting someone. Rednour described Simmons as hyper,
energized, intense, and “bouncing off the walls.” She explained that he and
Pierce were talking to one another, and that the energy was that of two teenage
boys interacting. Rednour eventually directed Simmons, Pierce, and
Simmons’s brother Andrew, who had arrived in the meantime with a rifle, to
leave. A few days later Simmons returned to Rednour’s residence to pick up a
backpack he’d left behind. Rednour gave Simmons the keys to her shed where
the backpack was but did not go with him to retrieve it.
On June 6, 2019, police arrested Simmons and seized a backpack which
contained, among other items, a cellphone. Analysis of the cellphone
confirmed Helm’s testimony regarding Simmons’s calls to her and placed
3 Simmons at both the party and Rednour’s residence. The phone also included
photos of Simmons with a handgun with a clear clip and other firearms.
On June 7, 2019, police went to the trailer park where Rednour lives
after receiving an anonymous tip. There, under a shed close to Rednour’s
trailer but not belonging to her, they located a baggie containing a Glock with a
clear clip. Ballistics analysis later linked the Glock with shell casings found at
the scene of the shootings and identified it as the gun used in those crimes.
However no fingerprints were found on the gun or baggie, and Simmons could
not be included as a contributor to the partial DNA profiles of three people
found on the weapon.
A grand jury indicted Simmons on two counts of murder and one count
of second-degree assault. At trial, the Commonwealth introduced over
Simmons’s objection four of the photos found on his cellphone. Two of the
photos showed Simmons posing for the camera with a handgun with a clear
clip, along with other weapons. In one of the photos the gun was in Simmons’s
pocket, and in the other he held the gun in his hand. The remaining two
photos showed only firearms, including a handgun with a clear clip. The trial
court excluded other photographs from trial, including a photograph of
Simmons with a marijuana-leaf themed blanket.
Simmons also requested a voluntary intoxication instruction, which the
trial court declined to give. The jury ultimately convicted Simmons of two
counts of murder and one count of second-degree assault. The trial court
imposed the sixty-year sentence recommended by the jury.
4 ANALYSIS
Simmons raises three issues for our review: (1) whether the cellphone
photographs of him with firearms were properly authenticated; (2) whether
those photos were admissible under KRE 2 404(b); and (3) whether the trial
court erred in denying his request for a voluntary intoxication instruction. We
review each issue in turn, providing additional facts as necessary.
I. The Cellphone Photographs Of Simmons With Firearms Were Properly Authenticated.
Simmons first argues that the trial court erred in admitting the firearms
photos retrieved from his cellphone because those photos were not properly
authenticated. More particularly, Simmons contends the photos were not
authenticated because the Commonwealth could not say when the photos were
taken, whether they were taken with the phone or downloaded from another
source, or if they contained metadata. Simmons preserved this argument by
raising these objections during an in-chambers hearing regarding the photos.
KRE 103(a)(1). We therefore consider whether the trial court’s admission of the
photographs was an abuse of discretion. Johnson v. Commonwealth, 134
S.W.3d 563, 566 (Ky. 2004). That is, we ask “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).
KRE 901 requires evidence to be authenticated by proof “sufficient to
support a finding that the matter in question is what its proponent claims.”
2 Kentucky Rule of Evidence.
5 KRE 901(a). The Rule sets forth some forms such proof may take, including
testimony of a witness with knowledge “that a matter is what it is claimed to
be,” “[c]omparison by the trier of fact or by expert witnesses with specimens
which have been authenticated,” and “[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.” KRE 901(b)(1), (3), & (4). To satisfy KRE 901, “a party seeking
to introduce an item of tangible evidence need not satisfy an ‘absolute’
identification requirement, and evidence is admissible if the offering party’s
evidence reasonably identifies the item.” Grundy v. Commonwealth, 25 S.W.3d
76, 80 (Ky. 2000).
We find no abuse of discretion in the trial court’s admission of the
photographs as properly authenticated. At trial the Commonwealth presented
proof that police discovered a Glock with a clear clip beneath a shed near
Rednour’s property. The Commonwealth further presented ballistics proof
linking that same clear-clip Glock with shell casings found at the scene of the
shootings and identifying it as the murder weapon. The Commonwealth thus
sought to introduce the photographs from Simmons’s cellphone of him with a
clear-clip firearm to establish that the murder weapon was his.
The proof at trial was sufficient to authenticate the photographs for that
purpose, i.e., to support a finding that the photographs were in fact what the
Commonwealth claimed—images of Simmons with the gun used in the
shootings. First, Simmons’s mother was a person with knowledge who testified
that he was in the photos. This was sufficient to support a finding that the
6 person in the photos was Simmons. KRE 901(b)(1). Second, the jury was
shown photographs of the Glock with a clear clip found beneath the shed and
confirmed by ballistics analysis to be the murder weapon. As finder of fact, the
jury could compare that weapon with the gun in the cellphone photographs to
determine whether they were the same firearm. KRE 901(b)(3). In addition,
the clear clip shared by both the murder weapon and the gun in the cellphone
photographs was sufficiently distinctive to support a finding that the gun in the
photograph was the murder weapon. KRE 901(b)(4). The proof at trial was
thus sufficient to support a finding that the evidence was what the
Commonwealth claimed, i.e., photos of Simmons with the murder weapon.
Finally, we disagree with Simmons’s contention that proper
authentication required the Commonwealth to prove when the photos were
taken, how they ended up on his phone, or whether metadata existed. None of
those showings were required to establish what the Commonwealth sought to
prove, i.e., that Simmons was in possession of the murder weapon before or at
the time of the killings. Simmons’s cellphone was seized by law enforcement
shortly after the shootings, and thus it was clear the photographs were taken
before or near in time to the crimes. Any further detail regarding when the
photographs were taken was not necessary to establish what the
Commonwealth sought to show, i.e., that Simmons had been in possession of
the murder weapon. Nor was it necessary to show how the photographs came
to be on Simmons’s phone, or that metadata existed for the photographs, to
7 make that showing. As such, we find no abuse of discretion in the trial court’s
determination that the photographs were properly authenticated.
II. The Cellphone Photographs Were Admissible Under KRE 404(b).
Simmons also argues admission of the cellphone photographs violated
KRE 404(b). Simmons’s particular arguments are that the photos were not
relevant because it could not be determined when they were taken, whether
they were taken by him, or if they included the actual weapon used in the
crimes. Simmons also contends the photos were also not relevant insofar as
they included additional weapons besides the single Glock used in the crimes.
Simmons further asserts the photos were not probative and were substantially
prejudicial. Simmons objected both before and during trial to admission of the
photographs under KRE 404(b), and thus his objection is preserved. KRE
103(d).
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
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
8 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 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).
Here, we conclude the trial court did not abuse its discretion in finding
the cellphone photographs admissible under KRE 404(b). First, as to the Bell
factor of relevance, the photographs were relevant to establishing Simmons’s
identity as the shooter and his opportunity to commit the crimes. Simmons’s
theory of the case was that the shootings were not perpetrated by him but
rather by someone else. This theory thus placed the identity of the shooter at
issue in the trial. The photographs depicted Simmons with a firearm similar to
9 that identified by ballistics as the murder weapon. Moreover, both the murder
weapon and the gun in the photographs had a distinctive clear clip. As such,
the photographs were relevant to establish both Simmons’s identity as the
shooter and his opportunity to commit the shootings. See Thurman v.
Commonwealth, 975 S.W.2d 888, 898 (Ky. 1998) (holding that evidence
defendant was in possession of firearm similar to murder weapon “was relevant
evidence.”).
The relevance of the photographs was not undermined by the absence of
proof of when they were taken, particularly given that the cellphone was seized
near the time of the murders. Nor was the relevance of the evidence dependent
on how the photographs came to be on Simmons’s phone or where related
metadata was. Finally, it was not necessary for the Commonwealth to
establish with certainty that the firearm in the photographs was the same
weapon used in the murders. The murder weapon and the firearm in the
photographs were sufficiently similar that a reasonable jury could conclude
they were the same gun. That determination was for the jury, and Simmons of
course was free to point out the lack of definite proof that the gun in the
photographs was the murder weapon. Ultimately, however, the photographs
were relevant to prove identity and opportunity and thus were relevant for
permissible purposes under KRE 404(b).
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
10 conclude that the act[s] occurred and that the defendant was the actor.” Davis
v. Commonwealth, 147 S.W.3d 709, 724-25 (Ky. 2004). The photographs at
issue were retrieved from Simmons’s cellphone and his mother testified that it
was him in the pictures. This evidence was sufficient to support a reasonable
conclusion that Simmons appeared in the photographs. Thus the
probativeness factor of Bell was also satisfied.
Finally, we do not find an abuse of discretion in the trial court’s
determination that the prejudicial effect of the photographs did not
substantially outweigh their probative value. 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 v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016) (quoting Bell, 875
S.W.2d at 890). The cellphone photographs were highly probative of
Simmons’s identity as the shooter and his opportunity to commit the crimes,
given that they showed him with a firearm with a distinctive clear clip similar
to the murder weapon. Admittedly, the photographs were also prejudicial, not
only because they showed Simmons with a firearm similar to the murder
weapon but also with a variety of other firearms as well. Nonetheless, there
was nothing particularly shocking about the photographs, which ultimately
were little more than mundane photographs of the defendant showing his
guns. As such, we agree with the trial court’s conclusion that the prejudicial
effect of the photographs did not substantially outweigh their probative value.
11 There was no abuse of discretion in the admission of the photographs under
KRE 404(b).
III. The Trial Court Did Not Abuse Its Discretion In Declining Simmons’s Request For A Voluntary Intoxication Instruction.
Finally, Simmons argues that the trial court erred in declining to give a
voluntary intoxication instruction. Simmons notes that the trial court
discussed jury instructions with counsel “informally” and off the record, a
practice we have observed with increasing frequency. We advise trial courts
that discussions with counsel regarding the crafting of jury instructions should
take place on the record. Absent such a record, we are often left to speculate
as to the parties’ arguments and the trial court’s reasoning in reaching a final
set of instructions.
Nonetheless, because the Commonwealth acknowledges that Simmons
requested a voluntary intoxication instruction and because the trial court made
reference to that request in the course of other recorded portions of the trial,
we will treat the issue as preserved. See Brafman v. Commonwealth, 612
S.W.3d 850, 857 (Ky. 2020). We therefore review the trial court’s denial of
Simmons’s request for a voluntary intoxication instruction for abuse of
discretion and harmless error. Id.
Voluntary intoxication is a defense to crimes whose elements include the
forming of a specific intent, i.e., specific-intent crimes. KRS 501.080(1).
However, a voluntary intoxication instruction is warranted only if the proof is
sufficient to support a reasonable finding that the voluntary intoxication
completely prevented the defendant from forming the requisite intent. McGuire 12 v. Commonwealth, 885 S.W.2d 931, 934 (Ky. 1994) (“Intoxication, whether
voluntary or involuntary, is a defense to an intentional crime if the effect of the
intoxication is to completely negate the element of intent . . . .”) (emphasis
added). Mere evidence that the defendant was intoxicated is not sufficient to
warrant such an instruction. King v. Commonwealth, 513 S.W.3d 919, 923
(Ky. 2017). That is, mere proof of “‘impairment of judgment and/or physical
control that commonly leads intoxicated persons to do things they would not
ordinarily do’” does not, without more, suffice for the giving of a voluntary
intoxication instruction. Hargroves v. Commonwealth, 615 S.W.3d 1, 8 (Ky.
2021) (quoting Conyers v. Commonwealth, 530 S.W.3d 413, 432 (Ky. 2017)).
Rather, the proof must be reasonably sufficient “to prove that the defendant
was so [intoxicated] that he did not know what he was doing.” Harris v.
Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010) (quoting Fredline v.
Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (emphasis added)).
We have recently spoken to considerations relevant to a trial court’s
determination of whether to provide a voluntary intoxication instruction:
A criminal defendant has a basic constitutional right to present a defense, and this entitles the defendant to jury instructions that give effect to a defendant’s theory of the case. From this right, a duty is correspondingly imposed on the trial court to instruct on the whole law of the case. Indeed, “a trial court is required to instruct the jury on affirmative defenses and lesser-included offenses if the evidence would permit a juror reasonably to conclude that the defense exists or that the defendant was not guilty.”
While instructing the jury in a particular way is a discretionary function of the trial court, a trial court must be especially inclined to give instructions that go to the defendant’s state of mind, such as mistake or intoxication. “Intoxication . . . is 13 a defense to an intentional crime if the effect of the intoxication is to completely negate the element of intent; it causes the defendant’s mental state to equate with insanity. Voluntary intoxication negate[s] specific intent.”
Brafman, 612 S.W.3d at 858 (citations omitted). We have also noted that it is
well-established a voluntary intoxication instruction “is to be rejected if the
evidence does not warrant it.” Harris, 313 S.W.3d at 50.
The charges at issue here, murder and second-degree assault, are both
specific-intent crimes. Murder generally requires a specific intent to cause the
death of another person. KRS 3 507.020. Thus, if the proof is sufficient to
support a reasonable finding that a defendant’s voluntary intoxication
completely prevented him from forming an intent to cause the death of another
person, he is entitled to a voluntary intoxication instruction. Similarly, second-
degree assault generally requires a specific intent to cause serious physical
injury, or to cause physical injury by means of a deadly weapon or dangerous
instrument. KRS 508.020(1)(a), (b). Thus, if the proof is sufficient to support a
reasonable finding that a defendant’s voluntary intoxication completely
prevented him from forming an intent to cause serious physical injury or
physical injury by means of a deadly weapon or dangerous instrument, he is
entitled to a voluntary intoxication instruction. 4
3 Kentucky Revised Statute.
4 A wanton state of mind, rather than specific intent, may also suffice to support
a conviction for murder or second-degree assault. See KRS 507.020(1)(b) & KRS 508.020(1)(c). Voluntary intoxication of course is not a defense to crimes requiring only a wanton or reckless state of mind. McGuire, 885 S.W.2d at 934 (“Voluntary intoxication does not negate culpability for a crime requiring a culpable mental state of wantonness or recklessness . . . .”). 14 Here, Simmons asserts a voluntary intoxication instruction was
warranted because 1) Pierce testified Simmons smoked marijuana before the
shootings, 2) two witnesses testified Simmons was tripping on acid that
evening, 3) Rednour described Simmons as energetic, intense, and “bouncing
off the walls,” and 4) one of Helm’s friends stated Simmons sounded “messed
up” during his FaceTime call with Helm after the shootings. This proof could
certainly support a reasonable conclusion that Simmons was under the
influence of multiple drugs at the time of the shootings, but it falls short of the
necessary showing that he was so intoxicated he did not know what he was
doing. Absent such proof, there could be no reasonable finding that Simmons’s
voluntary intoxication rendered him unable to form the intent necessary to
commit the crimes of murder and second-degree assault.
Moreover, other proof at trial flatly contradicts any suggestion Simmons
was so intoxicated as to be unable to form an intent to kill or injure. For
example, immediately after the shootings Simmons had the mental capacity to
decide not to go home, to decide upon Rednour’s residence in Owensboro as an
alternative destination, and to give Pierce physical directions to the St. Anthony
trailer park where Rednour lived. See Soto v. Commonwealth, 139 S.W.3d 827,
868 (Ky. 2004) (noting defendant’s ability to locate a residence was not the
action “of a man so intoxicated that he did not know what he was doing”).
Additional proof further demonstrating that Simmons had mental control and
was aware of his actions include 1) his direction to Pierce to stay in the car
when they arrived at the party, 2) his quick return to the car after the
15 shootings, 3) his order to Pierce to “go” when he jumped back in the car, and 4)
his confession to Helm shortly after the shootings that he had killed Brown.
See Harris, 313 S.W.3d at 51 (holding that defendant’s memory of and boasting
about killing shortly after committing the crime did not “permit a finding that
at the time of the offense [he] was so intoxicated that he did not know what he
was doing”). Finally, while Rednour described Simmons as energetic and
“bouncing off the walls,” she also further clarified that Simmons was
interacting with Pierce at the time and that his energetic demeanor was typical
of interactions between teenage boys.
Thus, while the proof at trial showed that Simmons was intoxicated and
excitable, it did not show that his intoxication rose to a level such that he did
not know what he was doing or could not form an intent to commit the crimes
charged. As such, we perceive no abuse of discretion in the trial court’s denial
of Simmons’s request for a voluntary intoxication instruction. See Hargroves,
615 S.W.3d at 9 (“[W]hile [defendant] may have consumed alcohol, the proof
does not show he was so drunk he did not know what he was doing. Therefore,
we cannot say the trial court abused its discretion by declining to instruct
jurors on voluntary intoxication.”).
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Daviess Circuit Court.
All sitting. All concur.
16 COUNSEL FOR APPELLANT:
Kayla D. Deatherage Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General