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Supreme Court of Kentucky 2023-SC-0315-MR
ISAIAH D. JOHNSON APPELLANT
ON APPEAL FROM HENDERSON CIRCUIT COURT V. HONORABLE KAREN LYNN WILSON, JUDGE NOS. 21-CR-00285 & 21-CR-00301
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Isaiah D. Johnson appeals as a matter of right 1 from a Henderson Circuit
Court judgment sentencing him to twenty-years’ imprisonment for assault in
the first degree, fleeing and evading in the first degree, and retaliating against a
witness in a legal process, as enhanced by his status as a second-degree
persistent felony offender. Johnson also pleaded guilty to possession of a
firearm by a convicted felon and was sentenced to two-years’ imprisonment to
run concurrent with the other sentence. On appeal, Johnson raises two
issues: (1) error from the trial court’s failure to enter a directed verdict as to
fleeing and evading, and (2) an erroneous instruction on assault first degree.
Finding no merit to either contention, we affirm the trial court.
1 KY. CONST. § 110(2)(b). FACTUAL AND PROCEDURAL BACKGROUND
Johnson and Stephanie Simon met as neighbors while Johnson was
living with his mother in Henderson, Kentucky. Neighborly pleasantries turned
to affection and the two eventually began to date. Their dating relationship
lasted for about a year until the coupling turned sour. As things got worse,
Simon elected to move out of her home and into a hotel room, apparently to get
away from Johnson. Neither party acknowledged living with one another at
any point during the relationship.
On May 26, 2021, Simon returned to her hotel room from work to find
Johnson awaiting her. Johnson indicated he needed to go somewhere and
needed Simon to take him, but would not say where. Simon and Johnson then
drove around Henderson, Simon taking Johnson to “a couple places that I
knew he went.” Eventually they arrived at Henderson Station, where Simon
parked and the two sat in the car together.
Simon was paying little attention to Johnson, and may have had her eyes
closed, when she felt a soundwave go past her ears. Simon was unsure what
was happening but felt odd and hot. Johnson told her they needed to get out
of there, but when Simon tried to back the car up, she could not. She looked
down at her legs and saw a hole that was “gushing blood.” Johnson had shot
Simon in the leg.
Simon was able to drive the car to a nearby street, where she exited the
vehicle and immediately fell. Johnson picked her up and put her in the
passenger seat, but instead of taking Simon to the hospital, Johnson drove to
2 the tennis courts where they met Johnson’s relative. 2 When Simon protested,
Johnson threatened to shoot her in the head. The relative tried and failed to
remove the bullet from Simon’s leg until eventually the relative elected to drive
Simon to the hospital. The relative dropped Simon at the hospital and
departed. The gunshot wound to her leg was significant, but Simon was able
to recover, though not without pain.
Simon informed police Johnson was the shooter and in short order
Lieutenant Stuart Onan was able to locate Johnson driving the local roads.
Onan recognized Johnson and Onan activated his lights to effect a traffic stop,
but Johnson did not stop; instead he sped up and blew through a stop sign.
Onan declined to pursue due to safety concerns, but during his continued
patrol of the area he located Johnson on foot and apprehended him. Officers
also found a 9mm pistol in the area from where Johnson was coming.
Johnson was indicted in case 21-CR-285 for one count of possession of a
handgun by a convicted felon, fleeing and evading in the first degree,
possession of marijuana, and persistent felony offender second degree.
Johnson was subsequently indicted in case 21-CR-301 for one count of assault
first degree, domestic violence, retaliating against a participant in the legal
process, and persistent felony offender second degree. The two cases were
consolidated for trial, although the Commonwealth ultimately elected to try the
possession of a handgun charge separately.
2 The identity of the relative was never definitively established.
3 The details of the trial as relevant to this appeal are recited below. At its
conclusion, the jury found Johnson guilty of first-degree assault, first-degree
fleeing and evading, and retaliating against a participant in the legal process.
The jury recommended that Johnson be sentenced to ten years on the assault
and five years each on the charges of fleeing and evading and retaliating
against a participant in the legal process, all to run consecutive for a total of
twenty years. The jury then determined Johnson to be guilty of persistent
felony offender second degree and enhanced his sentence for first-degree
assault from ten to twenty years, but now with the other sentences to run
concurrently, again for a total of twenty years. The trial court entered a final
judgment and sentence consistent with the jury’s recommendation. Johnson
later pleaded guilty to an amended count of possession of a firearm by a
convicted felon and received a two-year term of imprisonment to run
concurrent with the charges from his trial. This appeal followed.
ANALYSIS
A. Johnson and the victim were not shown to be an unmarried couple.
Johnson’s first contends that the trial court erred in failing to deliver a
directed verdict as to the first-degree fleeing and evading charge because no
evidence was adduced at trial to establish he and Simon were members of an
unmarried couple pursuant to KRS 3 402.720(6). Johnson concedes this claim
is unpreserved and asks that we review for palpable error under RCr 4 10.26.
3 Kentucky Revised Statutes.
4 Kentucky Rules of Criminal Procedure.
4 Accordingly, we will reverse only if “a manifest injustice has resulted from the
error. That means that if, upon consideration of the whole case, a substantial
possibility does not exist that the result would have been different, the error
will be deemed nonprejudicial.” Graves v. Commonwealth, 17 S.W.3d 858, 864
(Ky. 2000) (citing Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App.
1986)). For the following reasons, we hold the trial court did not commit
palpable error in failing to grant a directed verdict as to fleeing and evading
first degree.
Our review of Johnson’s claim begins with a recognition of the trial
court’s obligations:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.3d 186, 187 (Ky. 1991). Upon appellate
review, the test for a directed verdict “is if, under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt, only then is the
defendant entitled to a directed verdict of acquittal.” Id. (citing
Commonwealth v. Sawhill, 660 S.W.2d 3, 4-5 (Ky. 1983)).
Fleeing and evading first degree, in relevant part, requires,
while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police
5 officer, and. . . [t]he person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720.
KRS 520.095(1)(a). KRS 403.720(2)(a) defines domestic violence as “Physical
injury, serious physical injury, stalking, sexual abuse, strangulation, assault,
or the infliction of fear of imminent physical injury, serious physical injury,
sexual abuse, strangulation, or assault between family members or members of
an unmarried couple[.]” In turn, a member of an unmarried couple is defined
as “each member of an unmarried couple which allegedly has a child in
common, any children of that couple, or a member of an unmarried couple who
are living together or have formerly lived together[.]” KRS 403.720(6). Johnson
points out that he and the victim do not have a child in common and he argues
that no evidence was introduced at trial to show he and the victim lived
together or had ever lived together.
Our appellate courts have strictly construed the requirement that both
parties live together in the domestic violence context according to KRS
403.720. In Rivers v. Howell, a Kentucky Court of Appeals case addressing
standing for a domestic violence order, that court observed that “Despite the
liberal construction afforded the [domestic violence] statutes, Kentucky courts
have consistently held that a typical ‘boyfriend/girlfriend relationship’ is not
within its coverage” and that “‘living together’ implied ‘some sort of
cohabitation.’” 276 S.W.3d 279, 282 (Ky. App. 2008) (quoting Barnett v. Wiley,
103 S.W.3d 17, 19 (Ky.2003)). Even under the more expansive concept of
6 “living together” employed in the family court context 5, we have “held that there
at a minimum, be proof that ‘the petitioner seeking a DVO shares or has
shared living quarters with the respondent before a finding can be made that
the two are an “unmarried couple” under KRS 403.725.’” Id. (quoting Barnett,
103 S.W.3d at 20). Thus, for the charge of fleeing and evading against
Johnson to stand, the Commonwealth must present more than just evidence
that Johnson and the victim were in a relationship, it must prove the two lived
with one another at some point.
Our review of the evidence convinces us the Commonwealth failed to
meet its burden. Regarding the couple’s living situations, the evidence
adduced at trial unambiguously only reflected that Johnson lived with his
mother and the victim lived next door. After the victim left her home to escape
Johnson and moved into a hotel, no testimony indicated that Johnson stayed
with the victim for even one night. In short, the evidence did not show the two
ever lived together.
Neither Johnson’s presence in the victim’s room or the couple’s
discussion of “home” on a jail call proves otherwise. Johnson’s presence in the
victim’s room the day of the shooting was apparently a surprise to the victim
and certainly did not suggest that Johnson had been there since the previous
night. And a jail call between Johnson and the victim wherein Johnson said “I
5 To be clear, we have explicitly rejected the idea that the “living together”
factors set forth in Barnett are appropriate in a criminal trial for first-degree fleeing or evading based on fleeing after committing act of domestic violence. Wright v. Commonwealth, 391 S.W.3d 743, 378-49 (Ky. 2012).
7 need you to get me home” and the victim responded “I want you home”
established only one thing: Johnson had a home. Where that home was and
who also lived in that home remains unclear. Indeed, the exchange just as
reasonably could be interpreted as Johnson wanting to return to his mother’s
home where he lived prior to the shooting. Although the jury is permitted to
“make a reasonable and logical inference or conclusion of a definite fact” if
“there [is] competent and relevant evidence,” Clark v. Commonwealth, 6 the
logical leap the Commonwealth seeks to establish goes too far.
Finally, that the defense erroneously represented to the jury during
closing arguments that “[o]bviously at one point these folks had lived together.
They were obviously at some point in love with each other, whether they are
still now or not—on those jail calls it was made pretty clear that they were in
love and lived together at some point,” does not cure the error. “Closing
arguments are not evidence,” Mayse v. Commonwealth, 422 S.W.3d 223, 227
(Ky. 2013), and “[t]he Commonwealth has the burden of proving every element
of the case beyond a reasonable doubt.” KRS 500.070(1). Failure to prove
every element “entitles the defendant to a directed verdict on that offense.”
Justice v. Commonwealth, 636 S.W.3d 407, 412 (Ky. 2021), abrogated on other
grounds by Sexton v. Commonwealth, 647 S.W.3d 227, 232 (Ky. 2022). The
defense did not waive the Commonwealth’s burden to prove every element
through its non-evidentiary statements to the jury. We do not suggest the
6 567 S.W.3d 565, 569 (Ky. 2019) (quoting Beatrice Foods Co. v. Chatham, 371
S.W.2d 17, 19 (Ky. 1963))
8 defense can never waive an issue through its actions—as demonstrated infra—
but in this instance the misapprehension of the evidence by Johnson did not
amount to such waiver.
Nevertheless, Johnson did waive his claim by failing to object to the
sufficiency of the evidence on domestic violence and failing to object to jury
instructions requiring a domestic violence. In essence, Johnson asks us to
reverse his conviction because the trial court failed to sua sponte direct a
verdict. However, Johnson cannot concede the existence of a fact at trial and
then argue its non-existence as a basis for appeal.
Our case law is clear that even a failure of proof is subject to waiver by
failure to make the appropriate objections. "It is settled that except in the most
flagrant of circumstances even constitutional rights may be waived by
nonassertion." Rudolph v. Commonwealth, 564 S.W.2d 1, 4 (Ky. 1977),
overruled on other grounds by Woods v. Commonwealth, 793 S.W.2d 809 (Ky.
1990). Accordingly, where a party fails to move for a directed verdict on a
particular element, he waives the issue on appeal. See Newell v.
Commonwealth, 549 S.W.2d 89, 91 (Ky. 1977) ("Proof that a defendant was over
the age of eighteen at the time of the commission of the prior felony offense is
an essential element of the persistent felony offender statute, but a failure of
such proof may be waived by not directing the attention of the trial court to the
omission by appropriate objections."); Cox v. City of Louisville, 439 S.W.2d 51,
54 (Ky. 1969) (holding failure to move for directed verdict on issue of liability
waived issue because "A party waives the insufficiency of his adversary's
9 evidence when he fails to challenge it by a motion for a peremptory
instruction.").
Of course, Johnson acknowledges his failure to preserve the issue and
requests review for palpable error. Our review under that more stringent
standard does not change the result. We have declined to find palpable error
where the Commonwealth is alleged to have failed to meet their evidentiary
burden, but the defendant does not timely object. E.g, Commonwealth v.
Wolford, 4 S.W.3d 534, 535-36 (Ky. 1999) (finding no palpable error for the
giving of a lesser-included instruction unsupported by the evidence). Here,
Johnson's objection to the evidence did not include a challenge to the living
arrangements of himself and the victim. Accordingly, we hold no palpable error
occurred.
B. No reversal due to the assault first-degree instruction.
Johnson next argues his conviction was tainted by the use of an
irregular jury instruction for determining guilt for assault first degree.
Inexplicably, the Commonwealth and Johnson, as well as the trial court, saw
fit to insert an additional element to assault first degree that required the jury
to find Johnson and Simon were “members of an unmarried couple.” The
parties apparently did this under the mistaken desire to conform the
instructions to the indictment which listed the charge against Johnson as
“First Degree Assault – Domestic Violence.” However, assault first degree is not
enhanced by virtue of it occurring as an act of domestic violence and no legal
10 basis exists for the inclusion of the “unmarried couple” element. 7 Johnson’s
argument as to why the element’s inclusion supports reversal—other than the
simple non-necessity of it—is muddled, but appears to suggest the additional,
non-contested element led the jury to believe assault first degree was the only
viable conviction. We find Johnson’s argument unavailing.
At a minimum, [jury] “[i]nstructions must be based upon the evidence and they must properly and intelligibly state the law.” Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky.1981). Their purpose “is ... to state what the jury must believe from the evidence. . . in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974). In criminal cases, instructions “should conform to the language of the statute,” Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky.2006)[.]
Wright v. Commonwealth, 391 S.W.3d 743, 746 (Ky. 2012). Although
“erroneous jury instructions are presumed to be prejudicial,” Mason v.
Commonwealth, 331 S.W.3d 610, 623 (Ky. 2011), “superfluous language in
instructions, when ‘there is no reason to think the jury was misled’, can be
simply harmless error.” Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky.
2018) (quoting Travis v. Commonwealth, 327 S.W.3d 456, 463 (Ky. 2010)).
The jury instructions were erroneous; our statutes do not contain an
enhancement for domestic violence and so the additional element was
superfluous language that did not conform to the language of the law.
However, the inclusion was not reversible error for two reasons. First, the error
was harmless. Although Johnson is at pains to explain to us how the
7 Curiously, the parties recognized this to be the case for assault second degree.
11 additional element prejudiced him, we cannot see how this could be so.
Johnson and the Commonwealth agreed, perhaps erroneously, that Johnson
and Simon were an unmarried couple, rendering the additional element
effectively null. And, if the point had been contended, the addition of the
“unmarried couple” requirement could only have inured to Johnson’s benefit by
presenting an additional obstacle to convict him of first-degree assault. We
have not found harm in the past where a superfluous element heightened the
Commonwealth’s burden of proof and we do not do so here. See Caudill, 540
S.W.3d at 369 (finding harmless additional language requiring a finding that
Caudill was “not privileged to act in self-protection” with regard to wanton
endangerment first-degree); Carrier v. Commonwealth, No. 2005-SC-000440-
MR, 2008 WL 199838, *2 (Ky. Jan. 24, 2008) (finding language in murder
instruction requiring the jury to find “Carrier did not believe that she was
privileged to act in self-protection” to be harmless surplusage).
Second, we would be remiss if we did not acknowledge that the
additional element was made at the request of Johnson. We need not belabor
the point that a defendant may not invite error into his trial and then reap the
rewards of that error on appeal. “[I]nvited errors that amount to a waiver, i.e.,
invitations that reflect the party’s knowing relinquishment of a right, are not
subject to appellate review.” Quisenberry v. Commonwealth, 336 S.W.3d 19, 38
(Ky. 2011). “Because Appellant himself proposed the [] instruction, which was
ultimately given, his right to appellate review of the claimed instructional error
was relinquished.” Thornton v. Commonwealth, 421 S.W.3d 372, 377 (Ky.
12 2013). Accordingly, even if the error had not been harmless, Johnson waived
his claim by requesting the erroneous instruction in the first place.
CONCLUSION
For the foregoing reasons, the judgment of the Henderson Circuit Court
is affirmed in all respects.
All sitting. Lambert, C.J.; Conley, Goodwine, Keller, Nickell, and
Thompson, JJ., concur. Bisig, J., concurs in result only
COUNSEL FOR APPELLANT:
Jennifer Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General