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Supreme Court of Kentucky 2024-SC-0345-MR
JASON TURNER APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE PATRICIA M. SUMME, JUDGE NO. 22-CR-00581
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
This case is before the Court as a matter of right following the conviction
of the Appellant, Jason Turner, for second-degree assault, first-degree criminal
mischief, fourth-degree assault, aggravated driving under the influence, and
first-degree persistent felony offender. He was sentenced to twenty years in
prison. He now appeals arguing several claims of error.
First, he argues the trial court erred by failing to grant his motion of
directed verdict pertaining to second-degree assault and first-degree criminal
mischief; second, the trial court erred in refusing to allow him a continuance to
retain private counsel; third, a violation of his Sixth Amendment confrontation
rights when a representative from Nissan was not called to testify about
information from the motor vehicle; fourth, the evidence of his intoxication
through blood samples was erroneously admitted in violation of the statute; fifth, improper evidence admitted in the penalty phase; and sixth, prosecutorial
misconduct during the penalty phase. For the following reasons, we affirm in
part and reverse in part. We remand for resentencing.
I. Facts Jason Turner was celebrating the birthday of his daughter at his
mother’s home on Parker’s Grove Road on March 26, 2021. The festive day was
joined by several family and friends, including Turner’s girlfriend at the time,
Stephanie Robinson, and a childhood friend, Trevor Rigney. The party began
around 5 p.m. in the evening. The three eventually left the party briefly to get
cigarettes and alcohol. Robinson testified she saw Jason only drink half a can
of beer prior to leaving, pouring the other half on the meat on the grill. Rigney
testified he had not seen Jason drink at all prior to leaving.
The three drove to a gas station and a liquor store, as well as briefly
stopping at Robinson’s sister’s house. Video camera footage from the gas
station and liquor store record a 2007 Nissan Armada coming and going.
Robinson testified the Armada was hers, but she shared it with Turner. It is
undisputed that Turner was driving. Robinson testified she purchased the
vehicle for $7,000. At the liquor store, Turner purchased a four-pack of Fireball
Whiskey airplane shooters. He drank two of them, as two empty bottles were
recovered at the scene along with two full bottles.
Driving back along Parker’s Grove Road, a road Turner grew up on and
was quite familiar with, the three approached a hill which, according to
Robinson, gave one “butterflies” in their stomach if a vehicle were going
2 sufficiently fast to jump the hill. Robinson testified she never did this herself,
but that Turner frequently did so. On this night as they approached the hill,
Turner told his companions he would “hit this f***king hill harder than I’ve ever
hit it.” Data from the vehicle shows that Turner was travelling approximately
76 miles per hour in a 55 miles per hour zone when he jumped the hill. Turner
perceived that he was going off the road, over-corrected, and crashed the
vehicle into a tree.
Robinson and Rigney were ejected from the vehicle. Robinson sustained
injuries that, if left untreated, would have been fatal. She broke six ribs,
multiple bones in the pelvic ring, her nose, as well as multiple teeth. A lung
was pierced and collapsed, and she also sustained a laceration to her liver and
buttocks. She had to be airlifted to a hospital in Cincinnati. Rigney, who had
inopportunely unbuckled himself to pick up some cigarettes moments before
the crash, initially appeared lifeless to a neighbor who responded to the crash.
When he did finally come to, he began walking aimlessly and repeating himself.
Fortunately for him, his only significant injuries were a laceration to his head,
a broken elbow, and an ankle injury. Turner, as is so often the outcome in
these types of cases, was essentially unscathed.
Turner’s conduct at the scene became an issue. Though Robinson was
screaming in pain, Turner was described as “more upset than she was.” Police
would later put him on the ground and handcuff him because of his
“aggressive” conduct with EMS. Later at the hospital, when police were seeking
blood samples, Turner had to be restrained and was subsequently charged
3 with and convicted of disorderly conduct and resisting arrest. The first blood
sample was extracted at 2:13 a.m., and the second at 3:15 a.m. The crash
occurred at approximately 9:49 p.m. Dr. Gregory Davis testified that based on
the blood alcohol content in the two samples, he could extrapolate Turner had
a BAC of .133 at the time of the crash.
Prior to trial, Turner had moved to suppress this evidence under KRS 1
189A.010(2)(a). That statutory provision generally prohibits blood tests taken
more than two hours after cessation of the operation of the motor vehicle if the
prosecution is based on KRS 189A.010(1)(a) or (f) but does not apply if the
prosecution is based on KRS 189A.010(1)(b), (c), or (e). The Commonwealth
represented to the trial court that its prosecution was based on these exempted
provisions, therefore, the statute did not compel a finding of inadmissibility for
the blood samples. The trial court agreed and allowed them in.
Also prior to trial, which occurred on June 12, 2024, Turner filed a pro
se motion for continuance to retain private counsel. This motion was filed on
May 29, 2024. Turner’s appointed counsel informed the trial court the motion
was filed against her advice and that she was prepared for trial. Turner
informed the trial court that he was not trying to make anyone angry, but that
he did not feel he had been adequately represented. He specifically noted that
he had not seen expert witness evidence regarding the motor vehicle data. The
trial court denied the motion. Important to our analysis in this issue, it must
be noted that Turner acknowledged he needed to work to afford private counsel
1 Kentucky Revised Statutes.
4 and did not presently have the estimated $5,000 needed to retain private
counsel. Thus, Turner was simultaneously requesting amendment of his bond
conditions so that he could find work. But only two weeks prior to his motion,
Turner had been charged in Graves County with four offenses. The
Commonwealth was in fact seeking to revoke Turner’s bond at the same time
he wanted the trial court to amend his bond to be able to afford private
counsel.
During the tree-day trial, Detective Aaron Schihl of the Serious Accident
Reconstruction Team testified regarding the nature of the crash and how it
occurred. Det. Schihl is trained on the Bosch CDR event-data recorder,
essentially the equivalent of a “black box” for motor vehicles. The 2007 Nissan
Armada, however, pre-dated this system. Det. Schihl had to work with a Nissan
representative to extract the data. The difference between the two is that the
Bosch system creates a downloadable PDF file, while the system in Robinson’s
vehicle created a “ticker-tape” style print out. Turner did not object to this at
trial, but now asserts the representative from Nissan who assisted Schihl in
obtaining the data needed to testify under KRE 2 901 to explain how the data
was interpreted and as a custodian of record to establish authenticity. The
Commonwealth responds that Det. Schihl’s lack of knowledge only pertained to
extracting the data from the system; he was perfectly competent to interpret
the data itself and that the Nissan representative “did not perform any
analytical function of any kind[.]”
2 Kentucky Rules of Evidence.
5 At the conclusion of the Commonwealth’s case-in-chief, Turner moved for
directed verdicts regarding first-degree criminal mischief and second-degree
assault. As to the former charge, Turner argues on appeal the Commonwealth
failed to prove Turner’s conduct was wanton; second, the Commonwealth failed
to prove Turner did not have a right to the vehicle; and third, the
Commonwealth failed to demonstrate more than $1,000 in damages. The
Commonwealth responds that the latter two of these arguments were not
presented to the trial court and, therefore, are unpreserved. Turner concedes
this in his reply brief and requests palpable error review as to these arguments.
As to second-degree assault, Turner similarly argues the Commonwealth failed
to demonstrate wantonness.
Finally, in the penalty phase, the Commonwealth introduced evidence of
three prior misdemeanor convictions. One, stemming from 2020, was a fourth-
degree assault, domestic violence conviction. Through testimony, the
Commonwealth elicited the name of the victim, Stephanie Robinson. The
second conviction was for the second-degree disorderly conduct and resisting
arrest stemming from the night of the accident. On direct testimony the
Commonwealth elicited the date of this offense. Similarly, during closing
arguments, the Commonwealth told the jury that this was not the first time
Robinson had been assaulted by Turner; that she was, therefore, “one of the
luckiest people in the world to now be walking away from that assault[,]” and
“that the sentence he received the first time he assaulted her clearly wasn’t
enough.” Turner objected to these statements as prosecutorial misconduct and
6 requested an admonition. The Commonwealth argued the defense had opened
the door by requesting leniency from the jury by pointing out the people in the
courtroom in support of Turner, including Robinson. The trial court agreed,
overruled the objection, and denied the admonition.
We now consider the merits, and additional facts will be elucidated as
needed.
II. Analysis A. Partial Error in Denying Directed Verdict Motions The legal standards for a directed verdict motion are clear: “‘if under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.’” Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977). “‘The trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion, and a directed verdict should not be given unless the evidence is insufficient to sustain a conviction. The evidence presented must be accepted as true. The credibility and the weight to be given the testimony are questions for the jury exclusively.’” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). The standard for appellate review is equally clear: “‘on appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.’” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Eversole v. Commonwealth, 600 S.W.3d 209, 217-18 (Ky. 2020). “We construe
all evidence below in a light most favorable to the Commonwealth.”
Commonwealth v. Jones, 497 S.W.3d 222, 225 (Ky. 2016).
The preserved argument for both first-degree criminal mischief and
second-degree assault is the alleged failure to demonstrate wanton conduct.
Turner concedes his conduct could be seen as reckless but insists he was
7 familiar with Parker’s Grove Road and the testimony supported that he had
“jumped” the hill routinely over the years. Accordingly, argues Turner, the
evidence supported that he did not perceive the risk, and could not be
convicted of wanton conduct.
A conviction for second-degree assault is justified when a person
“wantonly causes serious physical injury to another person by means of a
deadly weapon or a dangerous instrument.” KRS 508.020(1)(c). This statute
does not define wanton specifically, so we refer to KRS 501.020(3) for the
general definition:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto. One error of Turner’s reasoning is immediately apparent: he insists on a
subjective test for wantonness in that because he was familiar with the road
and had jumped the hill numerous times in the past, he could not be held to
have acted wantonly. The statute, however, creates an objective test from the
perspective of “a reasonable person . . . in the situation.” Id. We agree with the
Commonwealth that driving twenty miles per hour over the speed limit on a hill
in order to make a vehicle airborne does present a substantial and
8 unjustifiable risk to an objectively reasonable person that one could lose
control of the vehicle and crash.
Secondly, Turner argued below that his conduct did not manifest an
extreme indifference to human life. That language, however, is not in the
relevant statute. First-degree assault requires extreme indifference to human
life. KRS 508.010(1)(b). Its absence is a key distinguishing element between
first- and second-degree assault. Therefore, even assuming Turner is correct
that his conduct did not establish extreme indifference to human life, it is
irrelevant to a second-degree assault charge.
Finally, and dispositively, the evidence for intoxication was sufficient to
demonstrate wantonness. Dr. Gregory Davis testified that based on the blood
alcohol content in the two samples, he could extrapolate that Turner had a
BAC of .133 at the time of the crash. It is undisputed that Turner was driving,
and it is equally undisputed that his conduct was the cause of the crash.
Turner concedes this by acknowledging his conduct could be characterized as
reckless. Although Turner challenges the blood sample testimony, we “consider
in determining whether or not the evidence was sufficient to support a given
point . . . the same evidence considered by the trial court, rightfully or
wrongfully.” Burton v. Commonwealth, 300 S.W.3d 126, 144 (Ky. 2009). In
Burton, we affirmed a denial of directed verdict for second-degree assault
because the evidence was sufficient to show the defendant was intoxicated and
caused the collision. Id.
9 Similarly, in Burchett v. Commonwealth, we held “[o]ne way to prove
wantonness is to show that the defendant in a vehicle-homicide case was
driving while intoxicated.” 98 S.W.3d 492, 494 (Ky. 2003). Although Burchett
involved a second-degree manslaughter charge, the case is analogous as
second-degree assault and second-degree manslaughter both require a wanton
state of mind and neither require extreme indifference to human life. KRS
507.040(1) (defining second-degree manslaughter); Hudson v. Commonwealth,
385 S.W.3d 411, 417 (Ky. 2012) (explaining difference between wanton murder
and second-degree manslaughter is the absence of extreme indifference to
human life). Thus, a directed verdict on the basis that the Commonwealth had
not sufficiently demonstrated wantonness was not warranted and the trial
correctly denied the motion. 3
As to the unpreserved arguments regarding first-degree criminal mischief
that the Commonwealth did not demonstrate Turner had no property interest
in the Nissan Armada and that there was insufficient evidence to demonstrate
more than $1,000 in damages, we are unpersuaded as to the first argument
but agree with the second. 4 Palpable error focuses on manifest injustice and to
find that
3 To spare unnecessary ink, this ruling also includes the argument pertaining to
first-degree criminal mischief which also requires a wanton state of mind. KRS 512.020(1). 4 KRS 512.020(1) was amended in 2024 to decrease the threshold sum to $500
or more. KRS 512.020(1)(a), KY LEGIS 174 (2024), 2024 Kentucky Laws Ch. 174 (HB 5).
10 we “must plumb the depths of the proceeding” to discover whether “the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 4-5 (Ky. 2006). “A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). The essential question is whether a “substantial possibility” exists that “the result in the case would have been different without the error.” Id. Johnson v. Commonwealth, 680 S.W.3d 814, 824 (Ky. 2023).
The Commonwealth was not required to submit into evidence the title to
the Nissan Armada to demonstrate ownership as this is not a property dispute
case. Robinson’s testimony was sufficient to establish ownership, and she
testified that she purchased the vehicle and that she shared it with Turner.
Turner’s use of his girlfriend’s vehicle is not enough to raise an inference of
mutual ownership.
As to the damage calculation, Robinson testified she purchased the
vehicle for $7,000 (but there is no evidence for when the purchase was made)
and the crash had totaled the vehicle. The Commonwealth notes that “[w]e
have held that the testimony of the owner of stolen property is competent
evidence as to the value of the property.” Commonwealth v. Reed, 57 S.W.3d
269, 271 (Ky. 2001). This is true. But Reed is not the last word. In a much
more recent case, we held that an owner of property is qualified to testify as to
the value of that property but “his testimony must be supported by facts and
11 circumstances providing some minimal indicum of reliability beyond mere
allegation.” Commonwealth v. McMichael, 671 S.W.3d 30, 34 (Ky. 2023). 5
In McMichael, the owner of a diner testified that he purchased said diner
for approximately $25,000 and could potentially sell it for $30,000-$60,000. Id.
at 31. There was no proof beyond his own assertions for these valuations. Id.
The value of the actual stolen goods, stainless-steel siding, was estimated at
$3,000, again without any support except the owner’s assertion. Id. The
underlying indictment for theft by unlawful taking included the $3,000 sum.
Id. The owner had hired a contracting company who estimated the cost of
repair for the stolen goods would be $62,493. Id. The trial court agreed to
impose that amount as restitution. Id.
The Court of Appeals reversed. Id. at 32. The central issue on appeal
before this Court was whether the Court of Appeals had ignored precedent
holding the testimony of an owner of property is sufficient to establish the
value of stolen or damaged property. Id. We quoted at length an old opinion
which, pertinently, held that evidence of purchase price is insufficient to
5 McMichael speaks in the context of a restitution hearing because the
defendant pled guilty to the substantive act of theft by unlawful taking and agreed to pay restitution but disputed the value of that restitution. Id. at 31. There is, however, no logical reason to limit McMichael only to restitution hearings. If anything, that supports our conclusion here because the standard in McMichael was a preponderance of the evidence, while in Turner’s case below he was subject to a beyond a reasonable doubt standard. Also, of the four principal cases we relied upon in the McMichael decision—Allen v. Commonwealth, 146 S.W. 762, 762-63 (Ky. 1912), Poteet v. Commonwealth, 556 S.W.2d 893, 896 (Ky. 1977), Mitchell v. Commonwealth, 538 S.W.3d 326 (Ky. App. 2017), and Brewer v. Commonwealth, 632 S.W.2d 456 (Ky. App. 1982)—only Mitchell occurred in a similar restitution hearing; the other three were direct appeals from a full jury trial. 12 establish value at the time property was damaged or stolen. Id. (quoting Allen v.
Commonwealth, 146 S.W. 762, 762-63 (Ky. 1912)). Since the stainless-steel
siding appeared to have no market value, or at least none was shown, evidence
had to be established from competent witnesses. The only witness for the
Commonwealth, however, was the owner though “no evidence of his
qualifications to testify as to the diner's worth, beyond merely being its owner,
was presented.” Id. at 33. The Court of Appeals concluded the owner
offered nothing more than his mere opinion of the worth of both the metal and the diner. There was no evidence of the current value of the diner or of the stainless steel at the time it was taken. This is simply insufficiently detailed or reliable to establish a fair restitution computation; due process requires more. Id. We affirmed this holding. Id. In support, we highlighted several cases
demonstrating that while an owner of property is qualified to testify, something
more than opinion must be presented to support the owner’s assessment of
value. For example, we cited the case of Poteet v. Commonwealth, 556 S.W.2d
893, 896 (Ky. 1977) where the owner established the value of an item in the
form of an insurance claim. McMichael, 671 S.W.3d at 34. We also cited
Mitchell v. Commonwealth, 538 S.W.3d 326, 328 (Ky. App. 2017) where the
owner of jewelry established her valuations by reference to listed prices on
Amazon.com. McMichael, 671 S.W.3d at 35.
Consequently, we must agree with Turner that the Commonwealth has
not established the value of the Nissan Armada at the time of the crash.
Robinson offered no testimony or other evidence as to the value of the vehicle
at the time of the crash. The Commonwealth concedes this. Instead, it argues
13 for the inference based on Robinson’s testimony as to purchase price. But
“[e]vidence of the cost price of an article is not conclusive as to its value[.]” Id.
at 32 (quoting Allen, 146 S.W. at 763) (emphasis removed). There was nothing
to support that the estimated value of the vehicle at the time of crash was more
than $1,000. Owners of property are competent to testify as to the value of
their property, but that testimony must be accompanied by “some minimal
indicum of reliability beyond mere allegation.” Id. at 36. That standard was not
met below.
Accordingly, there is a failure of proof in the Commonwealth’s case. “A
conviction based on insufficient evidence necessarily results in manifest
injustice.” Martin v. Commonwealth, 686 S.W.3d 77, 99 (Ky. 2023). To uphold a
conviction without an essential element being proven is a fundamental and
unambiguous threat to the judicial process, and if uncorrected would seriously
undermine the fairness of judicial proceedings. Johnson, 680 S.W.3d at 824.
Had this been brought to the trial court’s attention a substantial possibility of a
different result exists and the motion for directed verdict regarding first-degree
criminal mischief would likely have been granted. We conclude a palpable error
occurred and reverse Turner’s conviction for that offense. 6
6 Given our rationale, remand is unnecessary since a retrial on this charge is
constitutionally barred. “Generally, the double jeopardy clause does not bar retrial after reversal of a criminal conviction. But retrial is barred if an appellate court has found there was insufficient evidence to support the conviction.” Cohron v. Commonwealth, 306 S.W.3d 489, 497 (Ky. 2010) (internal citation omitted).
14 B. No Abuse of Discretion in Denying Continuance The trial court’s decision to deny Turner’s motion is presented on appeal
as a denial of a motion to withdraw counsel, but it substantively required a
continuance of trial and an amendment of bond conditions as well. All three
decisions are within the discretion of the trial court. Deno v. Commonwealth,
177 S.W.3d 753, 759 (Ky. 2005) (standard of review for motions to substitute
counsel); McCoy v. Commonwealth, 553 S.W.3d 816, 820 (Ky. 2018) (standard
for review of motions to continue trial); Abraham v. Commonwealth, 565 S.W.2d
152, 154-55 (Ky. 1977) (standard of review for setting bond conditions). 7
Based on the factual recitation in Part I we find no abuse of discretion. A
motion to substitute counsel “is a high bar and there must be good cause for
removal.” Henderson v. Commonwealth, 563 S.W.3d 651, 669 (Ky. 2018). We
find nothing in Turner’s case beyond the mere generalized grievances that we
have heretofore found insufficient. See, e.g., Stinnett v. Commonwealth, 364
S.W.3d 70, 81 (Ky. 2011). Moreover, because Turner’s motion essentially
required an amendment of bond conditions so that he could work and raise
funds to hire a private attorney, which he admitted at the hearing he could not
presently do, the trial court was unlikely to allow such amendment in light of
Turner’s new charges in Graves County for which the Commonwealth was
presently seeking a revocation of bond.
7 Our decision in Abraham followed Stack v. Boyle, 342 U.S. 1, 6-7 (1951), that
there is no discretion to refuse to amend excessive bail conditions. There is no argument on appeal that Turner’s bond conditions were excessive therefore, this is not a constitutional question and the abuse of discretion standard is appropriate. 15 C. No Palpable Error in Motor Vehicle Data Testimony Under KRE 901, “[w]hether there is enough evidence of authenticity to
admit evidence is within the discretion of the trial court.” Brafman v.
Commonwealth, 612 S.W.3d 850, 866 (Ky. 2020). Turner argues there was
insufficient evidence of authenticity as he alleges Det. Schihl was not qualified
to interpret the crash data from the Nissan Armada since a Nissan
representative had to assist in extracting the data. He also insists the Nissan
representative had to testify as the custodian of records. We disagree.
Det. Schihl represented that he was competent to interpret the data from
the Nissan but was unfamiliar with how to extract that data from its system.
The Commonwealth asserts the Nissan representative did not perform or aid in
any analytical function and Turner has not shown any evidence to the
contrary. At worst, he points to testimony from Det. Schihl who stated,
[W]e were able to piece together with the collision, they went over the rise in the roadway. The vehicle, or at least some of the vehicle tires, got airborne and the operator then perceived he was at the edge of the roadway, as we saw in the tire marks, and as is very common, overreacted with a hard steering input to the left. Turner argues the plural “we” in Det. Schihl’s statement “seemed to be
testifying as to conclusions made in conversations with the Nissan
representative.” We disagree. The plural “we” could just as well have been a
reference to Det. Schihl’s colleagues on the Serious Traffic Accident
Reconstruction team. Secondly, Turner does not point to any indication that
the Nissan representative was ever the sole custodian of the vehicle data, and
Det. Schihl’s testimony indicates that the representative “came out” and
16 extracted the data while police were in overall custody of the vehicle. Finally,
the Commonwealth correctly points out that Turner has not demonstrated he
was challenging the fact that he was speeding. He concedes on appeal that his
conduct was reckless and defense counsel at trial conceded in closing that
Turner was speeding.
D. No Error in Admitting Blood Sample Evidence A motion to suppress is reviewed by appellate courts under a two-prong
test: we review factual determinations for clear error and review the application
of law to the facts de novo. Cox v. Commonwealth, 641 S.W.3d 101, 113 (Ky.
2022). As stated in Section I, KRS 189A.010(2)(a) generally prohibits blood
tests taken more than two hours after cessation of the operation of the motor
vehicle if the prosecution is based on KRS 189A.010(1)(a) or (f) but does not
apply if the prosecution is based on KRS 189A.010(1)(b), (c), or (e). The trial
court agreed with the Commonwealth that its prosecution was based on the
exempted provisions and allowed Dr. Gregory Davis’ testimony. Dr. Davis
testified he could extrapolate Turner’s level of blood alcohol content at the time
of the crash to be .133 based on blood samples taken beyond two hours after
the crash. He also testified to inactive marijuana particulates in Turner’s blood
meaning that Turner had likely ingested marijuana a day before the crash, but
this did not contribute to his intoxication at the time of the crash.
17 Accordingly, Turner argues the Commonwealth could not be prosecuting
him under KRS 189A.010(1)(c) 8 or (e). 9 We agree with Turner that because the
Commonwealth would have known prior to trial the substance of Dr. Davis’
conclusions that the marijuana found in Turner’s blood did not contribute to
his intoxication at the time of the crash, a prosecution based on a combination
of substances under KRS 189A.010(1)(c) or (e) would not have authorized the
admissibility of the blood samples as evidence. Nonetheless, KRS
189A.010(1)(b) states, “[a] person shall not operate or be in physical control of
a motor vehicle anywhere in this state . . . [w]hile under the influence of
alcohol[.]” The statute unambiguously declares, “[t]he results of the [blood
sample] test or tests, however, may be admissible in a prosecution under
subsection (1)(b) or (e) of this section[.]” The evidence was admissible under the
statute therefore, the trial court did not err and the motion to suppress was
correctly denied.
E. Error in the Penalty Phase This issue concerns the truth-in-sentencing statute, KRS 532.055(2)(a)
and “the nature of prior offenses” that juries may informed of. In Mullikan v.
Commonwealth, we recognized “by our previous struggles with this issue, that
8 “A person shall not operate or be in physical control of a motor vehicle
anywhere in this state . . . While under the influence of any other substance or combination of substances which impairs one's driving ability[.]” 9 “A person shall not operate or be in physical control of a motor vehicle
anywhere in this state . . . While under the combined influence of alcohol and any other substance which impairs one's driving ability[.]”
18 trial judges and prosecutors are in desperate need of a bright line rule.” 341
S.W.3d 99, 109 (Ky. 2011). Mullikan, therefore, endeavored to lay down such a
rule. We stated,
the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed. We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge. The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i.e., the burglary was of a building as opposed to a dwelling. The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may—especially in rural areas—have prior knowledge about the crimes.
Id. At trial below, the Commonwealth prompted information regarding a
previous conviction for fourth-degree assault, domestic violence and specifically
disclosed through testimony the name of the victim, Stephanie Robinson. The
Commonwealth also educed the date of a prior conviction for resisting arrest
and second-degree disorderly conduct to show the underlying conduct
occurred on the night of the crash. Turner argues Mullikan’s stricture on
admitting victims’ names was violated, and cites Stansbury v. Commonwealth,
454 S.W.3d 293 (Ky. 2015) in support, where we concluded disclosing the
victims’ names on two of three charges was palpable error. Id. at 304-05.
Turner also argues eliciting the date of the underlying conduct in his second
conviction went beyond the scope of the element of the crimes in violation of
Mullikan.
The Commonwealth responds that Mullikan’s prohibition on naming
victims was out of concern that jurors may know the victim and thus be 19 unduly influenced. There is, however, no evidence of that occurring here as the
jury was asked if they knew Stephanie Robinson during voir dire since she was
a principal victim in the underlying case. Moreover, the Commonwealth asserts
its eliciting this information was in response to defense counsel’s argument in
closing that Turner would not “consciously disregard something that would put
Ms. Robinson at the risk of death[,]” and that Turner was not intoxicated the
night of the crash because he cooperated with authorities.
We disagree with the Commonwealth. First, as we have often stated,
arguments are not evidence. The Commonwealth was essentially arguing for
curative admissibility by relying upon defense counsel’s statements in closing
argument to admit substantive evidence that is generally prohibited, i.e., the
names of the victims. We have specifically held the doctrine of curative
admissibility is not applicable when seeking to redress statements in closing
arguments. Walker v. Commonwealth, 288 S.W.3d 729, 741 (Ky. 2009).
Moreover, in this case and under these facts, the fourth-degree assault
conviction is not a proper rebuttal to an assertion that Turner would never
place Robinson at risk of death since there was no explanation of the
underlying facts in the previous case to explain how the prior conviction
demonstrated he had placed Robinson at risk of death; indeed, there could not
have been under the truth-in-sentencing statute. Mullikan, 341 S.W.3d at 109
20 (“evidence of prior convictions is limited to conveying to the jury the elements of
the crimes previously committed.”). 10
Fourth degree assault only requires physical injury to another person.
KRS 508.030(1). Physical injury is defined as “substantial physical pain or any
impairment of physical condition[.]” KRS 500.080(17). It is contrasted with
“serious physical injury” which does include “a substantial risk of death[.]” Id.
at (19). Assault in the first degree and second degree require serious physical
injury. KRS 508.010(1); KRS 508.020(1). Therefore, in this case, the conviction
for fourth degree assault does not in and of itself demonstrate that Turner had
previously placed Robinson at risk of death, and is not proper evidence to rebut
the assertion even if curative admissibility was appropriate.
Finally, in Stansbury, we held the naming of victims was palpable error
and that the prohibition upon introducing victims’ names was supported by
“good, clear, published case law wherein we have repeatedly advised the
Commonwealth to stop introducing the very type of evidence in question here.”
Stansbury, 454 S.W.3d at 304. Regardless of Mullikan’s explanation that
naming victims may arouse improper memories of the jury, we do not read
Mullikan as treating the issue exhaustively. Mullikan explicitly attempted to lay
down a bright line rule for all cases. The Commonwealth’s attempt to
10 Mullikan adopted “a clear rule prohibiting the admission of factual details of
prior crimes under Truth in Sentencing.” Mullikan, 341 S.W.3d at 109. In other evidentiary contexts outside of the Truth-in-Sentencing paradigm, it is possible that the factual details underlying a fourth-degree assault conviction could rebut an assertion that a person did not place another person at risk of death.
21 distinguish Mullikan, that its prohibition only applies in the rare occasion that
a juror might be familiar with a victim of a previous crime, only serves to cast
shadows where we have sought to give light. We conclude the trial court erred
in allowing this evidence to be heard.
As to the date of the underlying conduct in his conviction for disorderly
conduct and resisting arrest, we are more circumspect. Once again, the
doctrine of curative admissibility is not a good justification as relied upon by
the Commonwealth below. The date of the underlying conduct is not an
element of the crimes of disorderly conduct or resisting arrest, though dates
could be a necessary element for other crimes. Additionally, it could be argued
with some reason that including the date was an idiosyncratic customization
“to fit the particulars of the crime[.]” Mullikan, 341 S.W.3d at 109. Because we
find reversible error for the naming of Stephanie Robinson, which was the more
egregious violation, we reserve judgment on this issue but we caution the
Commonwealth on resentencing that the better way to rebut any assertion that
Turner was cooperative with authorities is to rely on the testimony of EMS
personnel and police officers present at the scene of the crash and at the blood
draw who testified to their observations of Turner’s conduct.
F. Prosecutorial Misconduct Would be Insufficient for Reversal in Light of Other Evidence but it is Not Condoned Because we are reversing the sentencing phase on the above error, we
need not address this issue, but the statements made by the Commonwealth
below compounded the error of naming Robinson as a previous victim and
22 therefore, merit some attention. Additionally, there is a possibility of recurrence
on remand so addressing the issue is warranted. See, e.g., Roberts v.
Commonwealth, 599 S.W.3d 841, 854 (Ky. 2020) (addressing issue likely to
recur on remand); Dunkleberger v. Commonwealth, 719 S.W.3d 17, 30-32 (Ky.
2025) (addressing evidentiary issues because of potential for retrial).
“Prosecutorial misconduct is ‘a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.’” Commonwealth v. McGorman, 489 S.W.3d 731, 741–742 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011)). The misconduct can occur in a variety of forms, including improper closing argument. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). In considering an allegation of prosecutorial misconduct, the Court must view that allegation in the context of the overall fairness of the trial. McGorman, 489 S.W.3d at 742. To justify reversal, the Commonwealth's misconduct must be “so serious as to render the entire trial fundamentally unfair.” Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (quoting Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)). Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017). Our standard for
preserved objections to prosecutorial misconduct has built in a harmless error
analysis; thus, reversal is only warranted “if proof of the defendant's guilt was
not such as to render the misconduct harmless, and if the trial court failed to
cure the misconduct with a sufficient admonition to the jury.” Id. (quoting
Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)).
The issue is preserved here but we would not find reversal warranted
given the weight of evidence as to Turner’s guilt. That said, we are troubled by
the Commonwealth’s statements in closing. Turner’s counsel had made
statements to the effect that the jury should be lenient towards Turner because
23 of the support he had received throughout trial as evidenced by the number of
people sitting on his side of the courtroom during trial, including Robinson.
This was in spite of Robinson’s testimony that she and Turner were no longer
in a relationship and did not speak to one another. In response, the
Commonwealth relied upon the prior conviction of fourth degree assault,
domestic violence to argue,
I certainly don't think that Mr. Turner meant to cause the serious physical injury that he did to Stephanie Robinson on March 26, but this is not the first time he's assaulted Stephanie Robinson. Because you heard about that misdemeanor conviction from 2020 of an assault in the fourth-degree, domestic violence against her, too. And so, Stephanie Robinson has to know by now that she is one of the luckiest people in the world to now be walking away from that assault. And I don't know what other assault it will take for Stephanie Robinson to maybe move to the other side of the courtroom. Turner objected but the trial court overruled and allowed the Commonwealth to
proceed. The Commonwealth then stated,
I, too, have seen her sitting on the defendant's side of the courtroom. On the side of the courtroom of the person that she's trusted since she was a teenager. And the sentence that he received the first time he assaulted her clearly wasn't enough. Conceding the point that second degree assault and fourth degree
assault, domestic violence are both abstractly considered assaults, we cannot
countenance the Commonwealth’s unfair portrayal of the crash as merely one
additional occurrence in a pattern of violence perpetrated by Turner upon
Robinson. The Commonwealth’s argument was an obvious attempt to link the
two crimes and portray Turner as a serial abuser despite admitting there was
no evidence to suggest Turner purposefully crashed the vehicle to intentionally
24 harm Robinson. The Commonwealth explicitly argued the jury should consider
the alleged inadequacy of his sentence for fourth-degree assault, domestic
violence when sentencing him for second-degree assault. We, therefore,
conclude these statements were inflammatory. It is beyond cavil that the car
crash at issue here and assault arising from domestic violence are categorically
different things, involving different states of mind, vastly different
circumstances, and involving various underlying psychological motivations that
dispose one to commit domestic violence. The linking of the two crimes as
evidence of a pattern of assault upon Robinson is not a legitimate inference
justified by the facts. Murphy, 509 S.W.3d at 50.
Upon resentencing, the likelihood of the Commonwealth making a
similar argument is substantially lessened by our prohibition upon naming
Robinson as the victim in the fourth-degree assault, domestic violence
conviction. It is not impossible, however, as the Commonwealth could still seek
to portray the second-degree assault as simply one instance in a pattern of
assault which, as explained, is not justified by the categorically different
circumstances of the two crimes. We, therefore, admonish the Commonwealth
not to make this line of argument again.
III. Conclusion For the aforementioned reasons, we reverse Turner’s conviction for first-
degree criminal mischief. All other convictions are affirmed. Finding error in the
25 sentencing phase, we reverse his sentence and remand to Kenton Circuit Court
for a new sentencing phase.
All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, and Nickell, JJ.,
concur. Keller and Thompson, JJ., concur in result only.
COUNSEL FOR APPELLANT: Kayla D. Deatherage Assistant Public Advocate
COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky
Matthew R. Krygiel Assistant Attorney General