RENDERED: APRIL 4, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0157-MR
CORNELIUS A. GIVENS APPELLANT
APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 22-CR-00237
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND L. JONES, JUDGES.
JONES, L., JUDGE: Cornelius Givens appeals from a judgment sentencing him to
ten years’ imprisonment after a jury found him guilty of burglary in the second
degree and terroristic threatening in the third degree. We affirm. I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
The relevant facts appear to be uncontested. Givens, who resided in
Ohio, once had a dating relationship with Christine Warfield, who resided in Perry
County, Kentucky. According to Warfield, that relationship ended sometime
around March 2022. Around two months later, Warfield had a get-together at her
home. After Warfield and her boyfriend went to bed, they were awakened by
Givens throwing two bricks through Warfield’s bedroom window.
Warfield’s security camera footage, which was played at trial, shows
Givens attempting to enter Warfield’s home through the broken window. Givens
got most of his body inside Warfield’s home before retreating after Warfield’s
boyfriend threw a punch towards him. The camera’s audio feed captured Givens
stating he would kill Warfield.
Givens was charged with burglary in the second degree and terroristic
threatening in the third degree. An assault charge was later dismissed. Under
Kentucky Revised Statutes (KRS) 511.030(1) “[a] person is guilty of burglary in
the second degree when, with the intent to commit a crime, he or she knowingly
enters or remains unlawfully in a dwelling.” The basis for the misdemeanor
terroristic threatening charge was Givens’ threat to kill Warfield. See KRS
508.080(1)(a) (providing that a person commits terroristic threatening in the third
-2- degree if he or she “threatens to commit any crime likely to result in death or
serious physical injury to another person . . . .”).
In April 2023, the Commonwealth submitted a one-page notice, which
contained no specifics, pursuant to Kentucky Rule of Evidence (KRE) 404 of its
intent to introduce evidence of other crimes, wrongs, or acts committed by
Givens.1 In early October 2023, the Commonwealth submitted a second KRE 404
notice which listed three prior bad acts allegedly committed by Givens against
1 KRE 404 provides in relevant part as follows:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If 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.
(c) Notice requirement. In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.
-3- Warfield it intended to introduce at trial – two instances of Givens’ having choked
her and one instance of Givens’ having attempted to kidnap her.
A one-day trial on the charges against Givens began about a week
after the Commonwealth submitted its second KRE 404(b) notice. Right before
jury selection began, the court held a hearing on Givens’ objection to the
Commonwealth’s intent to introduce the KRE 404(b) evidence.
At the hearing, the Commonwealth asserted the prior bad acts
evidence was relevant to show Givens had intended to commit a crime – a
homicide – upon entering Warfield’s home. The Commonwealth said Givens’
intent would be a key issue in the trial. Givens argued that the probative value of
the KRE 404(b) evidence was greatly outweighed by the prejudice admitting it
would cause him. The trial court ruled in favor of the Commonwealth.
During voir dire, the trial court asked the prospective jurors if they
had “any” relationship with the Commonwealth Attorney. Juror 438 answered
affirmatively. Though the elected Commonwealth Attorney was apparently
present in the courtroom, he was not the trial attorney for Givens’ trial. At an
ensuing bench conference, the juror stated that she had gone to school with the
Commonwealth Attorney and had known him her whole life. She later stated she
had known him for forty-five to fifty years. The juror said that if she saw the
-4- Commonwealth Attorney at the grocery store, she would ask how his mother was
doing.
However, Juror 438 described the relationship as not being close and
the two did not “hang out” together. The juror stated she would be guided by the
evidence presented at trial and was not likely to believe the Commonwealth’s
evidence more than that offered by the defense. The trial court denied Givens’
motion to strike Juror 438 for cause. Givens used a peremptory strike on Juror 438
and informed the court of another juror for which he would have used a
peremptory strike if the court had granted his motion to strike Juror 438 for cause.
The Commonwealth asked Warfield if she had taken seriously
Givens’ threats to kill her during the broken window incident. She answered
affirmatively, based on past experiences. The Commonwealth asked her about
those experiences, which led to her recounting Givens’ alleged prior bad acts.
Warfield described Givens’ choking her because of his dissatisfaction
with how she had hidden Christmas presents. That was one of the incidents listed
in the Commonwealth’s KRE 404(b) notice.
Warfield also described Givens’ becoming upset when she stated she
did not know how to work a television remote at the house he shared with his
mother. Warfield testified that she had begun to cry, which further angered Givens
because he thought Warfield’s crying would awaken his mother. Warfield then
-5- described Givens’ dragging her by her hair to a different room, after which he
choked her. Warfield testified that she knew she was going to die and it had hurt
her to swallow for a time thereafter. She also described Givens having forced her
toward her vehicle and striking her with her bag as she walked. The choking was
listed in the Commonwealth’s KRE 404(b) notice; Givens dragging Warfield by
her hair and striking her with her bag were not.
Warfield testified that she eventually returned inside Givens’ home
after the choking and hair pulling incidents before leaving for her home the
following morning. However, she testified that Givens appeared at her house soon
after she arrived home. She described him then forcing her into a vehicle against
her will to return to Ohio. That is the kidnapping mentioned in the KRE 404(b)
notice.
Warfield often testified in a monologue-type manner, undisturbed by
questions or objections, including describing other bad acts or threats against her
by Givens not listed in the KRE 404(b) notice. She described having told her
friend at one point that it would be because of Givens if she (Warfield) died or
went missing. Warfield similarly testified that she knew she would not make it
home alive if she went with Givens back to Ohio. She described Givens as
“dangerous” and said he did not have a driver’s license (but he had driven from
Ohio to her house). Warfield testified that Givens had told her that he would have
-6- his cousins beat her to death and had put his cousins on speakerphone whereupon
they had said they would “take care of” her. She stated she knew Givens would
kill her or have someone else kill her.
Givens did not object to the aforementioned testimony. Instead,
Givens objected after Warfield testified that she had told her friend on the phone
that everything was alright even though she believed Givens was going to kill her.
Givens asserted that testimony was outside the scope of the Commonwealth’s KRE
404(b) notice. Givens asked for a mistrial or to strike the testimony. The trial
court denied Givens’ requests. Instead, the court told the Commonwealth to stick
to the events listed in the KRE 404(b) notice. Givens did not then seek additional
relief, such as a jury admonition.
The jury found Givens guilty of burglary in the second degree and
terroristic threatening in the third degree and recommended ten years’
imprisonment for the burglary charge – the maximum sentence. See KRS
511.030(2) (providing that burglary in the second degree, under these facts, is a
Class C felony); KRS 532.060(2)(c) (providing that the sentence for a Class C
felony is five to ten years’ imprisonment). The sentence for the misdemeanor
terroristic threatening conviction did not add to Givens’ ten-year burglary sentence.
Givens filed this appeal after the trial court sentenced him in accordance with the
jury’s recommendations.
-7- II. ANALYSIS2
A. DENIAL OF MOTION TO STRIKE JUROR 438
Givens argues the trial court should have stricken Juror 438 for cause
due to the juror’s “unusually close relationship to the Commonwealth’s Attorney.”
Appellant’s Opening Brief, p. 7. “Failing to remove a biased juror taints the entire
trial” because it is a structural error. Torrence v. Commonwealth, 603 S.W.3d 214,
220 (Ky. 2020). A court should excuse a juror if the situation is a “close call or the
issues could not be resolved with certainty . . . .” Id. at 221. We review a decision
about whether to strike a juror for cause for abuse of discretion. Id. at 220.
Our Supreme Court has explained that:
Under the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, a criminal defendant is entitled to an impartial jury. To help protect that right, [Kentucky Rule of Criminal Procedure] RCr 9.36 mandates that “[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” In making this determination, the trial court is to consider the prospective juror’s voir dire responses as well as his or her demeanor during the course of voir dire, and is to keep in mind that generally it is the totally [sic] of those circumstances and not the response to any single question that reveals impartiality or the lack of it. Impartiality . . . is not a technical question but a state of mind. Indeed, notwithstanding a prospective juror’s
2 “We have considered the parties’ extensive arguments and citations to authority but will discuss only the arguments and cited authorities we deem most pertinent, the remainder being without merit, irrelevant, or redundant.” Schell v. Young, 640 S.W.3d 24, 29 n.1 (Ky. App. 2021).
-8- responses during voir dire, whatever his or her protestations of lack of bias, the juror’s close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses, is sufficient to require the court to sustain a challenge for cause and excuse the juror. This is so because however sincere and well-meaning such prospective jurors may be, such close personal relationships are apt subconsciously [to] affect their decision in the case.
Brown v. Commonwealth, 313 S.W.3d 577, 596 (Ky. 2010) (some quotation marks
and citations omitted) (brackets in Brown).
However, a “mere social acquaintanceship” with an attorney is
insufficient to conclude the juror has implied bias “in the absence of other indicia
of a relationship so close as to indicate the probability of partiality.” Sholler v.
Commonwealth, 969 S.W.2d 706, 709 (Ky. 1998).
Juror 438 was a lifelong acquaintance of the Commonwealth Attorney
as the two were schoolmates. Standing alone, that relationship does not show a
“probability of partiality” such that the trial court abused its discretion by declining
to strike the juror. Id. In an analogous situation, our Supreme Court declined to
find inherent bias in a juror who sometimes played cards with the Commonwealth
Attorney. Id. Here, there was familiarity borne of attending school together but
there was no socialization between the juror and the Commonwealth Attorney.
The fact that the juror exchanged bland social pleasantries with the Commonwealth
-9- Attorney upon a happenstance meeting at a store, or referred to him by his first
name, does not show they had a “close” relationship.
Juror 438’s voir dire responses reinforce our conclusion. There is no
magical question or response which can rehabilitate an inherently biased juror.
Sturgeon v. Commonwealth, 521 S.W.3d 189, 196 (Ky. 2017). However,
“[c]larifying questions may be used as needed to ascertain the juror’s true attitude
about subjects of potential bias.” Id. at 194. Thus, “the trial court is to consider
the prospective juror’s voir dire responses as well as his or her demeanor during
the course of voir dire, and is to keep in mind that generally it is the totally [sic] of
those circumstances and not the response to any single question that reveals
impartiality or the lack of it.” Brown, 313 S.W.3d at 596. “Indeed, a juror may
indicate that he or she can be impartial, but may demonstrate a state of mind to
disprove that statement by subsequent comments or demeanor so substantially at
odds that it is obvious the [trial court] has abused [its] discretion in deciding the
juror is unbiased.” McDaniel v. Commonwealth, 341 S.W.3d 89, 92-93 (Ky. 2011)
(internal quotation marks and citation omitted) (brackets in McDaniel). Here,
Juror 438 consistently stated her acquaintance with the Commonwealth Attorney
would not sway how she viewed the evidence.
In sum, we are cognizant that “a potential juror’s close relationship
with the prosecutor trying the case is presumptively disqualifying.” Futrell v.
-10- Commonwealth, 471 S.W.3d 258, 274 (Ky. 2015). However, there was not a
“close relationship” between Juror 438 and the Commonwealth Attorney. First,
the juror was acquainted with the Commonwealth Attorney, not the assistant
Commonwealth Attorney who tried charges against Givens. Second, and more
importantly, Givens has not shown that Juror 438’s relationship with the
Commonwealth Attorney stemming from the two having attended school together
– without socializing – was so “close” that the trial court abused its discretion by
declining to strike Juror 438 for cause.
B. ADMISSION OF PRIOR BAD ACTS
Givens asserts the trial court erred by allowing the Commonwealth to
present evidence of his prior bad acts. As we perceive it, Givens’ argument is
twofold: first, the trial court erred by allowing the Commonwealth to present
evidence of the three prior bad acts listed in the KRE 404(b) notice; second, the
trial court erred by allowing Warfield to testify about other prior bad acts.
Before we may analyze the merits of Givens’ claims, we must
determine whether they are preserved for appellate review. Givens preserved the
issue of the admissibility of the three acts listed in the Commonwealth’s notice by
objecting to the notice and asking the trial court to exclude that evidence. We
review preserved evidentiary rulings under the abuse of discretion standard.
Johnson v. Commonwealth, 694 S.W.3d 232, 241 (Ky. 2023).
-11- However, Givens has not preserved the arguments in his brief
regarding the vast majority of Warfield’s discussion of additional prior bad acts.
For example, Givens did not object to Warfield’s testimony that Givens was
dangerous, that she believed he would kill her, that he drove without a license, that
he pulled her by her hair from room to room or that he struck her with her own
bag. See KRE 103 (generally requiring an objection to preserve an alleged
evidentiary error). We may only review unpreserved alleged errors under the
palpable error standard. KRE 103(e); RCr 10.26; Johnson, 694 S.W.3d at 241.
The “threshold for palpable error is high . . . .” Chavies v.
Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012). To demonstrate palpable error,
Givens “must show a probability of a different result or error so fundamental as to
threaten a defendant’s entitlement to due process of law.” Id. at 322-23. When
making a palpable error determination, a court should consider “whether the defect
is so manifest, fundamental and unambiguous that it threatens the integrity of the
judicial process.” Wahl v. Commonwealth, 636 S.W.3d 484, 501 (Ky. 2021)
(internal quotation marks and citations omitted). A palpable error is a mistake “so
egregious that it jumps off the page . . . and cries out for relief.” Chavies, 374
S.W.3d at 323 (internal quotation marks and citation omitted).
1. The Prior Bad Acts Listed in the Pretrial Notice
-12- Generally, a defendant’s prior bad acts are inadmissible because ultimate fairness mandates that an accused be tried only for the particular crime for which he is charged. An accused is entitled to be tried for one offense at a time, and evidence must be confined to that offense . . . . The rule is based on the fundamental demands of justice and fair play.
We have construed KRE 404(b) as being exclusionary in nature since it is a well-known fundamental rule that evidence that a defendant on trial had committed other offenses is never admissible unless it comes within certain exceptions, which are well- defined in the rule . . . itself. For that reason, any exceptions to the general rule that evidence of prior bad acts is inadmissible should be closely watched and strictly enforced because of the dangerous quality and prejudicial consequences of this kind of evidence.
Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (internal quotation marks,
footnotes, citations, and brackets omitted).
Making the “extremely difficult” determination of whether evidence is
admissible under KRE 404(b) must be done on a case-by-case basis. Leach v.
Commonwealth, 571 S.W.3d 550, 557 (Ky. 2019). A court considers “relevance,
probativeness, and prejudice” when determining whether evidence is admissible
under KRE 404(b). Jenkins v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016).
When evaluating relevance, “the assessing court asks, is the evidence
relevant for some purpose other than to prove the criminal disposition of the
accused? Aside from showing criminal propensity, that is, the extrinsic act
evidence must bear materially on an element of the offense or on some other fact
-13- actually in dispute.” Jenkins, 496 S.W.3d at 457 (emphasis in original) (internal
quotation marks and citation omitted). Here, as the Commonwealth notes, intent to
commit a crime after entering a dwelling unlawfully is an element of burglary in
the second degree under KRS 511.030(1). Thus, evidence of the three violent prior
bad acts purportedly committed by Givens is relevant because it shows he intended
to commit a crime – killing Warfield – after unlawfully entering Warfield’s home.
Similarly, the three prior bad acts in the KRE 404(b) notice were relevant to help
show Givens had “threaten[ed] to commit any crime likely to result in death or
serious physical injury” to Warfield, as was required to prove Givens was guilty of
terroristic threatening in the third degree. KRS 508.080(1)(a).
The three prior bad acts listed in the Commonwealth’s pretrial notice
involve alleged physical acts of violence by Givens against Warfield. Moreover,
prior to trial, the Commonwealth stated a belief that Givens’ intent to commit a
crime after unlawfully entering Warfield’s home would be a key issue in the trial.
Arguably, Givens did not end up vigorously contesting the intent issue
at trial. Nonetheless, we conclude the evidence in the Commonwealth’s notice was
relevant, especially since the burden for establishing relevance is slight. See, e.g.,
Webb v. Commonwealth, 387 S.W.3d 319, 325 (Ky. 2012).
Turning to probativeness, the fundamental question is: “could the
jury reasonably infer that the prior bad acts occurred and that [the defendant]
-14- committed such acts[?]” Jenkins, 496 S.W.3d at 457 (internal quotation marks and
citations omitted) (brackets in Jenkins). Warfield’s first-hand account of the three
prior bad acts listed in the KRE 404(b) notice satisfies that standard, especially
since “no contradictory evidence was presented at trial to lessen the probativeness
of [Warfield’s] testimony.” Leach, 571 S.W.3d at 556.
“And finally, the court asks, is the extrinsic act evidence unduly
prejudicial, that is, is the tendency of the evidence 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 (internal quotation marks and citations omitted) (brackets in Jenkins).
Our Supreme Court has held that “a trial court should exclude
evidence otherwise admissible under KRE 404(b) if its probative value is
substantially outweighed by the danger of undue prejudice.” Newcomb v.
Commonwealth, 410 S.W.3d 63, 77 (Ky. 2013). To assess the probative value of
evidence against the danger of undue prejudice, courts should consider:
the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
Id. at 77 (internal quotation marks and citation omitted). See also Leach, 571
S.W.3d at 554.
-15- Introduction of evidence about the three specific prior bad acts at
issue was undoubtedly prejudicial to Givens. Indeed, “[e]vidence of other bad acts
is always prejudicial . . . . The rule is clear, however, that the probative value must
be substantially outweighed by the prejudicial effect” to render the evidence
inadmissible under KRE 404(b). Leach, 571 S.W.3d at 557.
The evidence against Givens was overwhelming. As the
Commonwealth noted, the security camera footage essentially depicted Givens
committing the offenses for which he was on trial. That cuts both ways in terms of
the prior bad acts’ admissibility. The Commonwealth did not have a great need for
the prior bad acts evidence because the other evidence against Givens was
incredibly strong. On the other hand, admission of the prior bad acts evidence was
unlikely to materially impact the outcome of the trial since there was already
compelling evidence of Givens’ guilt.
As previously discussed, the prior bad acts did help underscore
Warfield’s belief that Givens was not making idle threats against her. Moreover,
the three bad acts occurred relatively close in time to the acts which led to these
charges. Finally, both the three prior bad acts and the charges against Givens
involved [domestic violence] by Givens towards Warfield. Our Supreme Court
has held that “[e]vidence of similar acts perpetrated against the same victim, we
have noted many times, is almost always admissible, under KRE 404(b), because it
-16- will almost always be significantly probative of a material issue aside from the
defendant’s character.” Jenkins, 496 S.W.3d at 458. “This evidence serves to
prove the defendant’s intent, plan, or absence of mistake or accident.” Kimmel v.
Commonwealth, 671 S.W.3d 230, 243 (Ky. 2023) (internal quotation marks and
citation omitted).
In short, though there are some factors which tend to favor Givens’
argument, we conclude he has not shown that the prejudicial nature of the prior bad
acts at issue substantially outweighed the evidence’s probative value.
In sum, we discern no abuse of discretion in the trial court’s decision
to allow the Commonwealth to present evidence of the three prior bad acts listed in
the KRE 404(b) notice.3
2. Prior Bad Acts Testimony Not Listed in the KRE 404(b) Notice
Warfield’s testimony strayed beyond the confines of the
Commonwealth’s KRE 404(b) notice. In her narrative-type testimony she
repeatedly made comments about her fears for her life and mentioned prior bad
acts committed by Givens which while part of the same course of conduct as the
3 Givens faults the trial court for not admonishing the jury as to how the evidence of prior bad acts may be used. See, e.g., Jenkins, 496 S.W.3d at 459. But Givens has not preserved the issue by citing to where he asked the trial court for a limiting admonition, either after the court made its pretrial ruling that the prior bad acts would be admitted or at the conference between counsel and the court regarding jury instructions. Givens has not shown the lack of an admonition, under these facts, was a palpable error.
-17- acts listed in the KRE 404(b) notice described above, were not themselves listed in
the notice.
However, Givens failed to object until Warfield described Givens
requiring her to call her friend and falsely state everything was alright even though
she believed Givens would kill her. Therefore, Givens did not preserve any issues
regarding Warfield’s prior testimony about Givens’ prior bad acts not listed in the
KRE 404(b) notice. As such, we must analyze Warfield’s testimony which
occurred prior to the objection under the palpable error rubric.
The admissibility of many of Warfield’s statements about Givens’
prior bad acts and her belief Givens would kill her is debatable. Nonetheless, even
if we were to assume solely for the sake of argument that the evidence was
inadmissible, Givens is not entitled to palpable error relief.
The evidence against Givens was overwhelming – he was essentially
depicted committing the crimes at issue on the security camera footage. Therefore,
we cannot conclude Warfield’s testimony about Givens’ prior bad acts which were
not listed in the KRE 404(b) notice was an egregious, trial altering palpable error.
See, e.g., Sexton v. Commonwealth, 647 S.W.3d 227, 232 (Ky. 2022) (holding that
the admission of KRE 404(b) evidence was not a palpable error because of the
overwhelming evidence against Sexton); Ramsey v. Commonwealth, 157 S.W.3d
194, 199 (Ky. 2005) (holding that the admission of KRE 404(b) evidence was not a
-18- palpable error because the evidence of guilt was so overwhelming that Ramsey
would have been found guilty if the evidence had not been admitted).
Finally, Givens preserved the issue regarding Warfield’s testimony
that, at Givens’ direction, she told her friend that everything was alright even
though she actually believed Givens would kill her. Again, however, even if we
assume, solely for the sake of argument, that statement was inadmissible its
admission would be a harmless error given the overwhelming evidence against
Givens. Givens’ argument that the trial court should have admonished the jury
after sustaining his objection fails for similar reasons.
III. CONCLUSION
Having considered the arguments or contentions of error made by the
parties, those not discussed herein are found to be without merit, irrelevant, or
redundant.
For the foregoing reasons, the Perry Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy G. Arnold Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-19-