RENDERED: JUNE 7, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0251-MR
JOHIEM MARQUELLE BANDY APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 22-CR-00777
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND ECKERLE, JUDGES.
CETRULO, JUDGE: Appellant Johiem Marquelle Bandy (“Bandy”) appeals the
Kenton Circuit Court’s judgment and sentence on verdict of the jury, which found
Bandy guilty of second-degree strangulation, fourth-degree assault, and fourth-
degree criminal mischief. Following the jury’s recommendation, the trial court
sentenced Bandy to five years of imprisonment and imposed two $500 fines. I. FACTUAL AND PROCEDURAL HISTORY
In July 2022, a grand jury indicted Bandy on counts of first-degree
strangulation, fourth-degree assault, and second-degree criminal mischief. The
indictment alleged that in April 2022, Bandy had strangled Amazeya Hankins
(“Hankins”), struck her in the face, and took her cellphone and smashed it. The
trial court held a two-day jury trial in November 2022. At trial, Bandy; Hankins;
Felicia Blair, Hankins’s mother (“Hankins’s Mother”); Emily Neff, Hankins’s
neighbor (“Neighbor”); Selena McCormick, a forensic nurse and violence
prevention coordinator who observed Hankins following the incident (“Nurse
McCormick”); Raven Chioca (“Officer Chioca”) and Joshua Knott (“Officer
Knott”), two police officers who arrived at the scene of the incident; and Detective
Greg Andrews (“Detective Andrews”) testified.1
Hankins’s Neighbor testified that on the day of the incident, she saw a
“young man” in her neighbor’s front yard holding her neighbor by the hair and
punching her in the face. Prior to seeing the altercation, she heard a loud
commotion coming from her neighbor’s apartment and could hear a woman yell,
“get off of me” and “why are you doing this?” She also heard a man yell, “I’ll slap
the shit out of you.” Hankins’s Neighbor then called the police and the “young
1 Additionally, Bandy’s friend, Myjon Hubbard, who was present for a portion of the incident, testified. However, Hubbard left Hankins’s apartment before Bandy got physical with Hankins and did not contribute significant testimony relevant to the issues before this Court.
-2- man” let go of Hankins and “took off.” Although Hankins’s Neighbor saw Bandy
assaulting Hankins, she did not see Bandy with his hands around Hankins’s neck
or choking her.
Next, Hankins testified that she saw Bandy near her apartment on the
day of the incident and initially invited him inside. At first, they were getting
along well but eventually, Bandy started demanding money from Hankins.
Hankins did not have any cash on her, so she had to go to the ATM. Hankins
explained that she tried to get Bandy to leave her alone because she did not want to
give him any money, but he was not deterred and followed her to the ATM. Once
she got to the ATM, she stayed inside the store for a while, hoping Bandy would
leave, but Bandy waited there for her. Bandy told her he was annoyed that it took
her so long but when she exited the store to walk home, he walked in a different
direction.
A few minutes later, Bandy and a friend showed up at Hankins’s
apartment and Bandy entered “with an attitude.” At that time, Hankins was at the
top of the stairs video chatting her mother.2 Immediately, Hankins could tell
Bandy was mad, and at one point, he told his friend to leave because he was going
to beat up Hankins. She was then in the upstairs bathroom when Bandy ran up the
2 Hankins testified that she had been on the phone with her mother for most of the morning because she knew how Bandy could be and that he would get upset if she did not give him what he wanted.
-3- stairs and grabbed her by the neck with both hands. Hankins testified that she
could not breathe and could barely talk, but she told him to let her go. He did not
let her go. Eventually, he let go with one hand to grab Hankins’s phone and once
he got the phone, he let go of her. Hankins testified that once Bandy let her go, she
was dizzy, lightheaded, sick to her stomach, and struggling to catch her breath.
Then she exited the bathroom and Bandy started hitting her with both hands as
they made their way down the stairs and out to the front yard. Outside, Bandy kept
hitting Hankins and Hankins’s Neighbor called the police. At that point, Bandy
left.
Once the police arrived, Hankins was interviewed and sent to the
hospital for treatment. At the hospital, she was treated for pain in her head, face,
and throat. Hankins testified that she arrived with bruises, knots, and swelling on
her face; and before the incident, she did not have any of those injuries or pain.
Further, Hankins’s voice was different following the assault, due to the pain
imposed and crying during the incident. Hankins identified the defendant, Bandy,
as the aggressor.
On cross-examination, the defense asked Hankins if she told the
police she was not going to pass out during or following the choking, but she did
not recall saying that. Defense counsel played the video of the interview to
Hankins to refresh her recollection. After listening to the video, Hankins
-4- confirmed that she had previously said “it wasn’t to the point where she was going
to pass out” but she emphasized that she still could not breathe when Bandy had
his hands around her neck.
Next, Hankins’s Mother testified that on the day of the incident, she
and Hankins were video chatting while Bandy was at Hankins’s apartment. She
testified that she heard yelling and Hankins told her Bandy was mad. Hankins’s
Mother also heard Bandy tell his friend to leave because he was going to beat up
Hankins. Then, Hankins went to the bathroom and Hankins’s Mother heard Bandy
run up the stairs. Then, she heard Hankins yell, “Ma, he’s choking me.” After
that, the phone screen went black, and Hankins’s Mother drove to Hankins’s
apartment. She testified that when she arrived, Hankins was crying and told her,
“He was choking me, I thought I was about to die.” Further, Hankins told her
mother her throat hurt, and that Bandy had “taken [her] breath.” Hankins’s Mother
noticed that her daughter had swelling on her face, her voice was raspy, and some
of her braids had been pulled from her hair.
Next, Officer Chioca testified that when she arrived at the scene of the
incident, Hankins was distraught. Hankins was crying and shaking and was having
a difficult time catching her breath to talk to Officer Chioca. Officer Chioca
“knew that something bad had happened to her [Hankins].” Additionally, the
Commonwealth submitted Officer Chioca’s body camera footage showing Hankins
-5- crying and struggling to catch her breath. In the video, when Hankins identified
the aggressor as Bandy, Officer Chioca mentioned on her radio that he had “a
bunch of priors.” Defense counsel objected to the admission of prior bad acts and
the Commonwealth acknowledged that those phrases were supposed to have been
edited out of the video. The defense requested a mistrial; however, the trial court
did not believe that it was a “manifest necessity.” The trial court offered to instead
admonish the jury regarding that statement; however, defense counsel insisted that
he was not requesting an admonition and would “not settle for anything short of a
mistrial.” The trial court denied the motion for mistrial.
Officer Knott then testified and largely confirmed Officer Chioca’s
series of events. Officer Knott transported Hankins to the hospital and attended
portions of her medical treatment. During Hankins’s discussions with the nursing
staff,3 Hankins stated that she was choked, hit in the face and head, and felt as
though she was going to pass out.
Next, Nurse McCormick testified that she completed a medical
forensic exam on Hankins at the emergency department. Hankins had reported to
Nurse McCormick that she had been strangled. After Hankins detailed the
strangulation, Nurse McCormick completed a “head to toe” exam. During the
exam, Nurse McCormick noted that Hankins had abrasions on her face and head,
3 These conversations were captured on Officer Knott’s body camera.
-6- and subconjunctival hemorrhages and redness in her eye. Nurse McCormick
explained that subconjunctival hemorrhages were consistent with a report of
strangulation because such injuries result from the obstruction of blood flow to the
brain through the neck. Defense counsel inquired whether the subconjunctival
hemorrhages could have resulted from other injuries like forceful sneezing,
coughing, or vomiting. Nurse McCormick agreed that the hemorrhages could be
consistent with such actions and that Hankins had informed her that she had
vomited earlier in the day and had been crying throughout the day.
Then, Detective Andrews testified. He spoke with Hankins in the
days following the incident and spoke with Bandy once he had been picked up “on
separate charges.” During those discussions, Bandy told Detective Andrews that
he had assaulted Hankins.4 In the interview, Bandy explained to Detective
Andrews that his anger had been “building up and building up” and that he
punched Hankins multiple times once they got to the front yard and then threw
Hankins’s phone on the ground. Detective Andrews noted that although Bandy
denied the strangulation, he admitted to the remaining charges in the interview
video.
The Commonwealth rested, and Bandy moved for a directed verdict
on the strangulation charge, claiming the Commonwealth failed to present
4 Detective Andrews’s recollection of the admission was confirmed via video of that interview.
-7- sufficient proof that Bandy impeded Hankins’s air or blood circulation. The
Commonwealth contended that it had presented sufficient evidence of that charge.
The trial court overruled the motion and noted that Nurse McCormick specifically
testified that Hankins’s injuries were consistent with strangulation and that
Hankins had testified that she believed she was going to pass out during and after
the incident. Further, the police officers’ body camera videos showed Hankins’s
severe distress.
Finally, Bandy testified. He largely confirmed Hankins’s recollection
of the incident. Bandy admitted that he and Hankins got into a physical
altercation; he hit Hankins; they fought back and forth; and, he took Hankins’s
phone outside and smashed it. However, he denied strangling Hankins.
Following the defense case, Bandy renewed his motion for a directed
verdict; however, again, the trial court denied it, finding the Commonwealth
presented sufficient evidence to bring the action. Further, the trial court found the
issue of Bandy’s credibility in denying the strangulation was a question of fact for
the jury.
After a little over an hour of deliberation, the jury delivered a guilty
verdict on all three charges. Before the sentencing phase, the Commonwealth
informed the trial court that it intended to introduce a prior conviction for assault
and robbery that had subsequently been pardoned by former Governor Matt Bevin.
-8- The defense objected, and the trial court heard arguments, but allowed the prior
conviction testimony to be admitted. The conviction was introduced through
Andrew Munson, a probation and parole officer. Officer Munson was then subject
to cross-examination by the defense and asked to read the certified copy of the
pardon to the jury. In his closing argument, the defense stated:
As you have all heard, at the time of the prior offenses you have heard about in this case, he was 14-years old. And not only that, he was ultimately pardoned by the governor. So we ask that you not hold that against him and simply pass judgment on him on the facts of this case.
In the Commonwealth’s closing statement during this phase, it stated
that Governor Bevin had granted Bandy’s pardon “in the cloak of darkness” with
“one foot out the door.” Defense counsel did not object. The jury recommended a
sentence of five years of imprisonment for the second-degree strangulation; 12
months of imprisonment and a $500 fine for the fourth-degree assault; and 12
months of imprisonment and a $500 fine for fourth-degree criminal mischief.
Defense counsel did not object to the imposition of the $500 fines. Additional
facts will be discussed, as needed.
II. ANALYSIS
Bandy argues the trial court erred when it (A) admitted testimony
regarding Bandy’s previous untruthfulness to police; (B) allowed the
Commonwealth to introduce a pardoned conviction during the penalty phase; (C)
-9- failed to grant a mistrial after the jury heard unedited body camera video, which
stated Bandy had a “warrant for the same stuff” and “a bunch of priors”; (D) failed
to grant a directed verdict on the strangulation charge; and (E) imposed two $500
fines, in violation of Kentucky Revised Statute (“KRS”) 534.040(4).
A. Questions Regarding Untruthfulness
First, Bandy argues that the trial court erred when it permitted the
Commonwealth to question Bandy regarding conflicting statements he had given
to police regarding a separate strangulation charge. Bandy contends that such
questioning violated Kentucky Rule of Evidence (“KRE”) 608, which governs the
use of specific instances of conduct for the purposes of attacking a witness’s
credibility. Bandy argues that under KRE 608, “counsel is limited to asking the
witness about the specific instance of conduct on cross-examination and is stuck
with whatever answer is given[,]” citing Allen v. Commonwealth, 395 S.W.3d 451,
462 (Ky. 2013).
While Bandy acknowledges that KRE 608 and Allen allow the
Commonwealth to inquire about his untruthfulness with the police, he asserts that
the questioning went too far and violated KRE 404(b), which prohibits the
introduction of prior bad acts to show a criminal predisposition. As such, Bandy
argues the Commonwealth’s questions should have been limited to “have you ever
lied to police?” and should not have referenced a specific instance. However, the
-10- Commonwealth asserts that the questions regarding Bandy’s prior untruthfulness
were proper under KRE 608.
We review the trial court’s decisions regarding evidentiary issues for
abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)
(citation omitted). The test for abuse of discretion is whether the trial court’s
decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. (internal quotation marks and citation omitted).
KRE 608(b) provides that
[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness . . . . No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross- examiner has a factual basis for the subject matter of his inquiry.
(Emphasis added.)
Here, before beginning its cross-examination of Bandy, the
Commonwealth approached the bench and discussed its intention to present
evidence that Bandy had lied to police about previously strangling someone. The
defense argued that such questioning would violate KRE 404(b), but the
Commonwealth contended that it spoke to Bandy’s credibility and did not fall
-11- under KRE 404(b). Further, the Commonwealth argued that it was not required to
provide notice of such questioning when it raised credibility concerns on cross-
examination. The trial court agreed that the line of questioning went toward
credibility and therefore did not fall under KRE 404(b).
The Commonwealth indicated that it planned to ask Bandy whether he
had ever lied to Detective Andrews about previously choking someone. If Bandy
said no, the Commonwealth planned to say that Bandy had told an officer that he
did choke a different woman and then changed his narrative and told Detective
Andrews that he did not choke that person. The judge clarified that although the
Commonwealth was potentially presenting another act, it was being used to show
credibility; therefore, it was permissible. Defense counsel argued that it was
unduly prejudicial to bring forward information from a similar but separate case
and essentially would be creating a trial within a trial.
Defense counsel emphasized that the Commonwealth needed to make
the questioning clear that the lying did not involve the present case. The trial court
specified that the question was whether, when talking to officers about a similar
action, he told two different stories to two different officers. Whether Bandy
committed the other act was not the question before the trial court. Defense
counsel posited that the Commonwealth could ask, “in a different situation, did
you tell the police that you choked someone and then later tell them that you
-12- didn’t?” Defense counsel conceded that what the trial court had stated “makes
sense” and that such questioning was fine.
When the jury returned, the Commonwealth asked Bandy whether he
had ever told police that he choked someone and Bandy answered “yes.” Then, the
Commonwealth asked if Bandy then told Detective Andrews that he had not
choked someone and again Bandy answered, “yes.” The Commonwealth stated
that if he told two officers two different stories, he had to have lied to one of those
officers and Bandy said, “yes.” Defense counsel did not object to that line of
questioning.
In Allen, our Supreme Court explained that
KRE 608 lays out a substantive limit: the conduct must be probative of truthfulness or untruthfulness. As long as the conduct in question is so probative, whether it resulted in a criminal conviction or not, the court may, in its discretion, allow inquiry into it but not extrinsic proof of the conviction itself. KRE 608 also lays out two procedural safeguards: the conduct cannot be proved with extrinsic evidence, and may only be inquired into on cross- examination.
Allen, 395 S.W.3d at 466.
Similarly, here, the Commonwealth simply cross-examined Bandy
regarding his prior instance of untruthfulness with the police. He admitted the
-13- same, and the examination ended there.5 Our caselaw and rules permit questioning
a defendant’s truthfulness in the way the Commonwealth did here.6 As such, the
trial court did not abuse its discretion when it permitted such cross-examination.
B. Introduction of Pardoned Conviction During Penalty Phase
Next, Bandy claims that the trial court improperly permitted the
Commonwealth to introduce a certified copy of Bandy’s prior conviction, which
had been pardoned.7 Bandy argues a pardoned conviction should not be used
during sentencing, citing Fletcher v. Graham, 192 S.W.3d 350, 362 (Ky. 2006)
(quoting Nelson v. Commonwealth, 109 S.W. 337, 338 (Ky. 1908)), which stated,
“The pardoned man is relieved from all the consequences which the law has
annexed to the commission of the public offense of which he has been pardoned,
and attains new credit and capacity, as if he had never committed that public
offense.”
5 If Bandy had stated that he had not lied to police, the Commonwealth planned to submit video interviews of his conflicting statements. As that issue is moot, we need not address whether admission of those videos would have been proper. 6 Bandy urges this Court to consider Smoot v. Commonwealth, No. 2015-CA-001893-MR, 2018 WL 3595827 (Ky. App. Jul. 27, 2018); however, our Supreme Court ordered that opinion not to be published and it is therefore not binding on our analysis. See Kentucky Rule of Appellate Procedure 41(A). 7 Additionally, Bandy argues the Commonwealth improperly commented on the pardon, stating Governor Bevin granted it “in the cloak of darkness” with “one foot out the door”; however, defense counsel did not object to such statements and the trial court did not have the opportunity to rule on the appropriateness of such statements. As such, the issue is not properly before this Court.
-14- However, Fletcher also notes that collateral consequences may still
flow from a pardoned conviction, including impeachment as a felon. Id. Further,
the Commonwealth contends that the prior conviction was admissible under KRS
532.055(2)(a), the Truth In Sentencing Act. The Truth In Sentencing Act provides,
in relevant part, that
[e]vidence may be offered by the Commonwealth relevant to sentencing including: 1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor; 2. The nature of prior offenses for which he was convicted; 3. The date of the commission, date of sentencing, and date of release from confinement or supervision from all prior offenses[.]
This Court has emphasized that “while a full pardon has the effect of
removing all legal punishment for the offense and restoring one’s civil rights, it
does not wipe out either guilt or the fact of the conviction.” Harscher v.
Commonwealth, 327 S.W.3d 519, 522 (Ky. App. 2010) (citation omitted)
(emphasis added). See also Fletcher, 192 S.W.3d at 363 (Ky. 2006) (“Thus, while
a pardon will foreclose punishment of the offense itself, it does not erase the fact
that the offense occurred, and that fact may later be used to the pardonee’s
detriment.”) (emphasis added).
As discussed above, evidentiary issues are reviewed for abuse of
discretion. See Clark, 223 S.W.3d at 95 (citation omitted). Here, the trial court
determined that there was no Kentucky precedent precluding a jury from
-15- considering a defendant’s pardoned conviction. Instead, as noted above, Kentucky
precedent has acknowledged that pardoned convictions could “later be used to the
pardonee’s detriment.” See Fletcher, 192 S.W.3d at 363. Further, because a
pardon does not “wipe out . . . the fact of the conviction” – Harscher, 327 S.W.3d
at 522 (citation omitted) – such a conviction remains valid and may be admissible
under KRS 532.055(2)(a), which states the Commonwealth may introduce
evidence of the defendant’s prior convictions. As such, the trial court’s decision to
allow evidence of Bandy’s pardoned conviction was reasonable and supported by
sound legal principles; therefore, the trial court did not abuse its discretion.
C. Unedited body camera video
Bandy argues the trial court erred when it denied his motion for
mistrial following the admission of unedited body camera footage. During Officer
Chioca’s testimony, the Commonwealth submitted her body camera video, which
showed that Bandy had “priors” and a similar prior conviction. When Bandy heard
those statements and objected, the Commonwealth acknowledged the error and
explained that “Commonwealth staff” was supposed to remove those statements
from the video.8 The trial court agreed that they should have been omitted, but did
not believe that it warranted a mistrial. Instead, the trial court offered to admonish
8 We emphasize that this is not a sufficient excuse. An attorney has the duty to diligently review the work of subordinates to ensure such oversight does not occur at trial.
-16- the jury regarding that statement; however, defense counsel insisted that it was not
requesting an admonition and would “not settle for anything short of a mistrial.”
A trial court has broad discretion to determine whether to grant a
mistrial or to admonish the jury. St. Clair v. Commonwealth, 455 S.W.3d 869, 892
(Ky. 2015) (citing Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005)).
As such, we review such decisions for abuse of discretion. Id.
Our Supreme Court has explained the standard for mistrials:
“[A] mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a ‘manifest necessity for such an action.’” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). “The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.” Woodard, 147 S.W.3d at 68 (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)). A trial court’s decision to grant a mistrial must be supported by a “manifest necessity” for that decision in the record. Wiley [v. Commonwealth, 575 S.W.2d 168, 168 (Ky. App. 1978)] (citations omitted). This necessity must be “an urgent and real necessity.” Id. (quoting Baker v. Commonwealth, [132 S.W.2d 766 (Ky. 1939)]).
Commonwealth v. Padgett, 563 S.W.3d 639, 646 (Ky. 2018).
When conducting this analysis, the trial court should consider if an
admonition could cure the complained-of error. Jacobsen v. Commonwealth, 376
S.W.3d 600, 611 (Ky. 2012). Here, the Commonwealth argues the error did not
-17- rise to a manifest necessity because it was fleeting, inadvertent, and the jury would
likely have heeded an admonition, citing Johnson v. Commonwealth, 105 S.W.3d
430, 441 (Ky. 2003). We agree. As the Commonwealth noted, in Jacobsen, 376
S.W.3d at 610, our Supreme Court found that,
absent flagrant misconduct, an error by the prosecutor will warrant relief only if an admonition was requested and either denied or inadequately provided, and then only if the error was not otherwise harmless. Here, because the alleged error, if any, was not flagrant, and because an admonition could easily have cured it, the trial court did not abuse its discretion when it denied [defendant’s] motion for a mistrial.
Further, as the Commonwealth noted, our Supreme Court recently
indicated that violations of
KRE 404(b)’s rule against the admission of prior bad acts as character evidence are generally subject to admonitory cures. Such an admonition to the jury is deemed to cure an error unless “the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it.”
Lewis v. Commonwealth, 642 S.W.3d 640, 643 (Ky. 2022) (citations omitted).
We find the trial court’s decision to offer an admonition to the jury –
instead of a mistrial – in light of the Commonwealth’s inadvertent but
inappropriate presentation of prior bad acts was not an abuse of discretion.
-18- D. Directed Verdict on Strangulation Charge
This Court reviews the denial of a motion for directed verdict under
an “any rational juror” standard; i.e., we must determine whether any rational juror
could have found all the elements of the crime, “viewing the evidence in [a] light
most favorable to the Commonwealth[.]” Quisenberry v. Commonwealth, 336
S.W.3d 19, 35 (Ky. 2011) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187
(Ky. 1991) (“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[.]”)).
“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.” Benham, 816 S.W.2d at
187.
KRS 508.175, the statute detailing second-degree strangulation,
provides
(1) A person is guilty of strangulation in the second degree when the person, without consent, wantonly impedes the normal breathing or circulation of the blood of another person by:
(a) Applying pressure on the throat or neck of the other person; or
(b) Blocking the nose or mouth of the other person.
(2) Strangulation in the second degree is a Class D felony.
-19- Bandy argues that the testimony at trial did not establish that he
impeded Hankins’s breathing or blood circulation. Bandy concedes the testimony
that Hankins was not able to breathe, but argues she also testified that she was able
to speak, and “speaking requires breathing.” Further, Bandy contends that Hankins
did not feel as though she was going to pass out; therefore, there was not adequate
evidence of strangulation. We disagree. KRS 508.175 requires neither that the
victim lose consciousness nor that she feel as though she may. The Kentucky
Supreme Court reached the same conclusion in Saxton v. Commonwealth, 671
S.W.3d 1, 10-11 (Ky. 2022), in which it held that
“Impede” is defined as “to interfere with the progress of.” Webster’s New Dictionary of the English Language 259 (2001). It is more traditionally defined as “to hinder” or “to obstruct.” Samuel Johnson, A Dictionary of the English Language 374 (Barnes & Noble Books 1994) (1756). [Victim’s] testimony that she could not breathe and that she felt she would pass out as a result of [defendant] squeezing her neck with his hand and forearm easily satisfies the elements required by law thus, we find no error in the trial court’s refusal to grant a directed verdict as a matter of law. Moreover, the trial court was required to take [the Commonwealth’s] account as true. Therefore, under the evidence as a whole, it was not clearly unreasonable for the jury to find guilt.
As outlined previously, multiple witnesses presented evidence that
indicated Bandy strangled Hankins. Nurse McCormick further detailed her
extensive physical examination of Hankins at the hospital and concluded that
Hankins’s injuries were consistent with strangulation. Although Bandy contended
-20- that Hankins’s injuries could have been the result of things other than
strangulation, it was the jury’s duty to consider both parties’ explanation of events
and weigh the evidence. Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky.
2017) (citing Benham, 816 S.W.2d at 187) (“Questions about the credibility and
weight to be given to the evidence are reserved to the jury.”). Based on the ample
testimony, videos, and images presented, a reasonable juror could find that Bandy
strangled Hankins. Therefore, the trial court did not err when it denied Bandy’s
motion for directed verdict.
E. Imposition of Fines
Next, Bandy claims that the trial court erred when it imposed two
$500 fines at sentencing, violating KRS 534.040(4).9 Although Bandy
acknowledges that he did not properly preserve the issue, he claims “the Court may
review sentencing errors even when not properly preserved in the trial court
because sentencing is jurisdictional.” Travis v. Commonwealth, 327 S.W.3d 456,
459 (Ky. 2010). He requests this Court review for palpable error. However, our
Supreme Court has held that “[i]f a trial judge was not asked at sentencing to
determine the defendant’s poverty status and did not otherwise presume the
defendant to be an indigent or poor person before imposing court costs, then there
9 KRS 534.040(4) provides that “[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.”
-21- is no error to correct on appeal.” Trigg v. Commonwealth, 460 S.W.3d 322, 333
(Ky. 2015) (quoting Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014)).
Likewise, the same rule applies to fees and fines:
The same analysis is applicable to the imposition of fines upon persons determined to be indigent, or “needy” under KRS 31.120 (listing factors to be considered in determining whether a person is “needy”). Unless the imposition of a fine upon an indigent or “needy” person is apparent on the face of the judgment or is in obvious conflict with facts established in the record (such as plainly having been found indigent at all stages of the trial proceedings), we do not regard it as a sentencing error that is reviewable on appeal in the absence of preservation.
Id. (emphasis added).
Here, Bandy did not challenge the imposition of the fines at
sentencing; therefore, we must determine whether Bandy’s indigency status was
obvious on the face of the judgment or in conflict with the record. See Trigg, 460
S.W.3d at 333 (“The indigent defendant is obligated to challenge the imposition of
a fine that is contrary to KRS 534.040(4), and failure to do so will foreclose
appellate review unless the error is apparent on the face of the judgment, or his
indigency at the time of sentencing is otherwise plainly established in the record.”).
Findings of indigency or representation by the Department of Public
Advocacy throughout the proceedings are facts that may indicate a defendant is
indigent. See Hall v. Commonwealth, 551 S.W.3d 7 (Ky. 2018); see also Trigg,
460 S.W.3d at 333. In Hall, the Kentucky Supreme Court found that “[b]ecause
-22- appointed counsel represented Hall throughout the proceedings, we may
assume . . . that the trial court improperly imposed a fine in violation of KRS
534.040(4).” Hall, 551 S.W.3d at 21. As such, the Court reversed the judgment
insofar as it imposed the fine. Id.
Here, however, Bandy was not represented by appointed counsel
throughout the proceedings. While the record indicates that the trial court initially
appointed a public defender when Bandy first appeared and Bandy submitted a
financial statement, affidavit of indigence, and request for appointment of legal
counsel, the record does not indicate whether the trial court ever granted Bandy’s
request for appointed counsel or found Bandy to be indigent. Further, the record
indicates that Bandy retained private counsel for the trial and did not submit a
motion to appoint the Department of Public Advocacy, citing indigency, until post-
conviction and sentencing. Only at that point, weeks after sentencing, did the trial
court find Bandy to be indigent and allow Bandy to proceed in forma pauperis for
the appeal. As such, the record at sentencing did not clearly establish that the trial
court had found him to be indigent and would not have assumed he was indigent,
as he had private counsel.
Because defense counsel failed to challenge the imposition of fines at
sentencing and Bandy’s poverty status was not apparent on the face of the record at
-23- sentencing, the trial court’s imposition of fines is not reviewable on appeal. See
Trigg, 460 S.W.3d at 333.
F. Cumulative Error
Finally, Bandy argues that the alleged errors resulted in cumulative
error and rendered the trial fundamentally unfair; therefore, the resulting judgment
should be reversed. Cumulative error is “the doctrine under which multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010). Our Supreme Court has found cumulative error
“only where the individual errors were themselves substantial, bordering, at least,
on the prejudicial.” Id. (citing Funk v. Commonwealth, 842 S.W.2d 476 (Ky.
1992)). However, as indicated, none of the alleged errors individually raised any
real question of prejudice to Bandy. As our Supreme Court noted in Brown,
“[a]lthough errors crept into this trial, as they inevitably do in a trial . . . they did
not, either individually or cumulatively, render the trial unfair.” Id. Likewise, here
we find no cumulative error.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the Kenton Circuit Court
judgment.
ALL CONCUR.
-24- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van de Rostyne Assistant Attorney General Frankfort, Kentucky
-25-