RENDERED: DECEMBER 19, 2024 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0499-MR
JOHN RAY WILLIAMS APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT V. HONORABLE JOSEPH W. CASTLEN, III, JUDGE HONORABLE KEVIN D. BISHOP, JUDGE NOS. 21-CR-00048 & 21-CR-00416
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE BISIG
AFFIRMING
A jury of the Graves Circuit Court convicted Appellant John Ray Williams
of retaliating against a participant in the legal process and of being a first
degree persistent felony offender (PFO). He received the maximum sentence of
twenty years, and now appeals to this Court as a matter of right. Ky. Const. §
110(2)(b). Following a careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2020, Appellant Williams was convicted in Graves Circuit
Court on a charge of first degree sexual abuse, victim under twelve. The
charge stemmed from abuse Williams perpetrated against his granddaughter,
L.W. L.W. resided primarily with Williams’ former daughter-in-law Leslie.
Leslie testified against Williams at the sexual abuse trial. Around four days after Williams’ conviction in the sexual abuse trial,
Leslie received a postcard from Williams in the mail at her home with the
following message:
Leslie, hi how are you doing? Things going alright? I’m doing alright considering you have to watch for all of the snakes, they are everywhere. Wish me luck in the Appeals Court, we might get to do it all over again.
By the way, I found this and thought you might want to have it, [Leslie’s date of birth and social security number]. Several other people wanted it. Good luck in the future. In the end, we all get what we deserve.
Lots of love always & forever.
John
P.S. Give the kids a big kiss and hug for me.
The handwriting on the postcard was consistent with handwriting by Williams
that Leslie had seen in the past.
Leslie found Williams’ comments in the postcard threatening. The
comment regarding Williams’ appeal and the possibility of doing another trial
was worrisome because it had been difficult to testify at the sexual abuse trial.
She likewise found his reference to getting what was deserved a threat. Leslie
was also disgusted with the P.S. regarding giving the kids a kiss and a hug,
given Williams’ conviction only a few days prior for sexually abusing L.W. She
further worried about what might be done with her birth date and social
security number.
Leslie contacted law enforcement regarding the postcard, and Williams
was ultimately charged with retaliating against a participant in the legal
2 process and being a first degree persistent felony offender. Williams’ defense at
trial was that the Commonwealth did not prove malicious intent, because
Williams may only have been trying to help Leslie by letting her know her
personal information had been divulged.
The jury found Williams guilty on both charges and recommended the
maximum sentence of twenty years. The trial court sentenced Williams
accordingly, and he now appeals to this Court as a matter of right.
ANALYSIS
Williams raises two issues for review by this Court: (1) whether the trial
court erred in allowing the Commonwealth to inform the jury that Williams had
been convicted of sexually abusing L.W.; and (2) whether Williams was entitled
to a directed verdict on the retaliation charge. We review each issue in turn,
providing additional facts as necessary.
I. Proof Of Williams’ Prior Conviction For Sexually Abusing L.W. Was Admissible Under KRE 1 404(b).
Before trial, the Commonwealth filed a motion pursuant to KRE 404(b)
seeking to admit evidence of Williams’ prior conviction for sexually abusing
L.W. The Commonwealth argued the jury needed to be informed not just
generally that Leslie had been a participant in a prior trial, but also specifically
that the prior trial had resulted in Williams’ conviction for sexually abusing
L.W. The Commonwealth asserted the nature of Williams’ sexual abuse
conviction would provide necessary context to demonstrate that his comment
1 Kentucky Rules of Evidence.
3 asking Leslie to give a kiss and a hug to her children for him was threatening.
Williams responded that the jury should only be informed there had been a
previous trial, but not that the subject of the trial had been his sexual abuse of
L.W.
The trial court found the prior conviction admissible under KRE 404(b)
because it was inextricably intertwined with Williams’ comment asking Leslie to
give her kids a kiss and a hug for him, and because its probative value
outweighed its prejudicial effect. The trial court therefore ruled the
Commonwealth could inform the jury that Williams had been convicted of
sexually abusing L.W., but could not elicit any further detail regarding that
abuse.
At trial, the prosecution informed the jury during its opening statement
that Williams had been convicted of sexual abuse, and mentioned the
conviction three more times. Leslie also testified to Williams’ conviction. In its
closing statement, the prosecution again pointed to the prior sexual abuse
conviction as evidence that Williams’ postcard was intended to threaten
retaliation against Leslie for her testimony in the prior trial.
Williams now contends on appeal that the admission of his prior
conviction for sexually abusing L.W. violated KRE 404(b). Williams objected
before and during trial to admission of this evidence, and his allegation of error
is therefore preserved. KRE 103(a)(1).
Under KRE 404(b), evidence of other crimes, wrongs, or acts is “not
admissible to prove the character of a person in order to show action in
4 conformity therewith.” However, the Rule provides two exceptions. First,
evidence of other crimes, wrongs, or acts may be admissible if “offered for some
other purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” KRE 404(b)(1).
Second, such evidence may also be admissible if it is “so inextricably
intertwined with other evidence essential to the case that separation of the two
(2) could not be accomplished without serious adverse effect on the offering
party.” KRE 404(b)(2).
In determining whether to admit evidence of other crimes, wrongs, or
acts under KRE 404(b), a trial court must consider the three factors of
relevance, probativeness, and prejudice set forth in Bell v. Commonwealth, 875
S.W.2d 882 (Ky. 1994). That is, the trial court must consider 1) whether the
proffered evidence is relevant for some purpose other than to prove the
defendant’s criminal disposition, 2) whether evidence of the other crime, wrong,
or act is sufficiently probative of its commission by the defendant, and
3) whether the potential prejudice from admission of the proffered evidence
substantially outweighs its probative value. Bell, 875 S.W.2d at 889-91. In
considering these factors, the trial court “must apply [KRE 404(b)] cautiously,
with an eye towards eliminating evidence which is relevant only as proof of an
accused’s propensity to commit a certain type of crime.” Id. at 889. We review
a trial court’s decision to admit evidence under KRE 404(b) for abuse of
discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
5 Here, we find no abuse of discretion in the trial court’s admission of
Williams’ prior conviction for sexually abusing L.W. With respect to the first
Bell factor of relevance, Williams’ prior conviction for sexually abusing L.W. was
relevant to demonstrate the menacing nature of his comment regarding kissing
and hugging L.W., and thus to proving his retaliatory intent in sending Leslie
the postcard.
To obtain a retaliation conviction, the prosecution must prove, among
other things, that the defendant’s conduct against the participant in the legal
process was “related to the performance of a duty or role played by the
participant in the legal process.” KRS 524.055(3). In other words, the
prosecution must prove that the defendant intended his conduct as retaliation
for the victim’s participation in the legal process. However, as in other contexts
requiring proof of retaliatory intent, there will not always be direct evidence of a
defendant’s criminal intent to retaliate against a participant in the legal
process. See Ky. Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003)
(“Like most retaliation cases, there is no direct evidence of retaliation here . . .
.”). Absent such direct “smoking gun” evidence, the prosecution must rely on
indirect evidence to prove the defendant’s retaliatory intent, such as the
circumstances surrounding the commission of the crime:
Seldom is there direct evidence of a defendant’s state of mind, but direct evidence is not required. As we recently reiterated in Rogers v. Commonwealth, 315 S.W.3d 303 (Ky. 2010), state of mind—intent in that case—may be established by circumstantial evidence. That evidence includes the defendant’s “actions preceding and following the charged offense,” . . . as well as the defendant’s knowledge and the surrounding circumstances.
6 Quisenberry v. Commonwealth, 336 S.W.3d 19, 36 (Ky. 2011) (citations
omitted).
Here, the Commonwealth contended that Williams’ postcard was a
retaliatory threat to harm Leslie by divulging her birth date and social security
number. Notably, however, the postcard contained no explicit threat that
Williams would divulge the relevant information, nor did it contain any other
direct statement of retaliatory intent. Taken literally, the postcard stated that
Williams had Leslie’s birth date and social security number, that other people
wanted it, and that “we all get what we deserve.” Williams thus argued at trial
that the prosecution had not proven malicious intent, and that the postcard
could have simply been intended to notify Leslie that her personal information
had been compromised.
Given Williams’ position at trial and the arguable lack of direct evidence
to the contrary, the Commonwealth was left to prove Williams’ retaliatory intent
by pointing to the surrounding circumstances in which he sent the postcard.
One such circumstance was that Williams had been convicted of sexually
abusing L.W. only four days before he asked Leslie in his postcard to give L.W.
a kiss and a hug for him. Ordinarily of course such a statement by a
grandfather would be entirely innocuous. But given the context of Williams’
very recent conviction for sexually abusing L.W. and the evident distress such
a statement by him would undoubtedly cause, the postcard takes on a far more
sinister light. As such, when considered in the broader context of Williams’
recent conviction for sexually abusing L.W., his request that she be given a kiss
7 and a hug from him made it more probable that the postcard was intended as a
retaliatory threat than mere notice that Leslie’s personal information had been
compromised. Thus, Williams’ prior sexual abuse conviction was relevant to
the element of retaliatory intent required for the Commonwealth to obtain a
conviction under KRS 524.055. See KRE 401 (“‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.”). It was thus also relevant for a
permissible purpose under KRE 404(b)(1), namely as proof of intent.
Williams does not dispute that the second element of the Bell test,
probativeness, is satisfied because there is no question he was convicted of
sexually abusing L.W. Williams does however argue that the third element of
the Bell test is not satisfied because the sexual abuse conviction was more
prejudicial than probative. We disagree. First, because of the nature of the
charge against Williams, the jury had to be informed there had been some prior
legal proceeding for the Commonwealth to demonstrate that Leslie had been a
“participant” in that proceeding as required to obtain a conviction. Second, the
trial court appropriately limited the Commonwealth to advising the jury that
Williams had been convicted of sexually abusing L.W., and barred the
admission of any further information or details regarding that crime.
Admittedly, admission of Williams’ prior conviction for sexual abuse was
unquestionably prejudicial. However, the trial court properly limited the
prejudice to the extent possible. This limitation regarding specific details
8 reduced any potential prejudice while still allowing the jury to view the
statements in a broader context. In addition, the prejudice to Williams from
admission of his prior conviction was far outweighed by the strong probative
value of that evidence. As noted above, the Commonwealth was required to
prove retaliatory intent, and Williams’ shocking inclusion of such a malevolent
and distressing statement was strong evidence that he intended the postcard
as an attack rather than as mere notice that Leslie’s personal information had
been compromised. Thus, because Williams’ prior conviction for sexually
abusing L.W. was relevant, probative, and not unduly prejudicial, the trial
court did not abuse its discretion in admitting evidence of that conviction at
trial.
II. Williams Was Not Entitled To A Directed Verdict.
Williams next argues he was entitled to a directed verdict on the
retaliation charge for two reasons: 1) the jury instructions improperly allowed a
finding of guilt on the basis of conduct that “could cause” damage, while the
statute criminalizes only conduct intended to cause damage; and 2) a threat of
damage to Leslie’s electronic assets was not damage to “tangible property” as
required by the statute.
Williams acknowledges his motion for directed verdict before the trial
court did not identify these specific issues and that this allegation of error is
therefore unpreserved. See CR 2 50.01; Ray v. Commonwealth, 611 S.W.3d
250, 266 (Ky. 2020) (holding that to preserve alleged error in denial of motion
2 Rules of Civil Procedure.
9 for directed verdict, a criminal defendant must “identify the particular charge
the Commonwealth failed to prove, and must identify the particular elements of
that charge the Commonwealth failed to prove.”). He therefore requests
palpable error review. RCr 3 10.26.
In determining whether an error is palpable, we consider
“whether on the whole case there is a substantial possibility that the result would have been any different.” To be palpable, an error must be “easily perceptible, plain, obvious and readily noticeable.” A palpable error must be so grave that, if uncorrected, it would seriously affect the fairness of the proceedings. “It should be so egregious that it jumps off the page . . . and cries out for relief.”
Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted).
Even when an error is palpable, relief is warranted only where it results in
manifest injustice. Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018).
An error results in manifest injustice if it “so seriously affected the fairness,
integrity, or public reputation of the proceeding as to be ‘shocking or
jurisprudentially intolerable.’” Conrad v. Commonwealth, 534 S.W.3d 779, 783
(Ky. 2017) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). The
conviction of a defendant absent sufficient proof of an essential element of the
charge is both a violation of due process and palpable error. Jackson v.
Virginia, 443 U.S. 307, 316 (1979) (noting that “an essential of the due process
guaranteed by the Fourteenth Amendment” is “that no person shall be made to
suffer the onus of a criminal conviction except upon sufficient proof—defined
as evidence necessary to convince a trier of fact beyond a reasonable doubt of
3 Rules of Criminal Procedure.
10 the existence of every element of the offense.”) (emphasis added); Schoenbachler
v. Commonwealth, 95 S.W.3d 830, 836-37 & n.10 (Ky. 2003) (“[A] conviction in
violation of due process constitutes ‘[a] palpable error which affects the
substantial rights of a party’ which we may consider and relieve though it was
insufficiently raised or preserved for our review.”) (quoting Perkins v.
Commonwealth, 694 S.W.2d 721, 722 (Ky. App. 1985)); Commonwealth v. Goss,
428 S.W.3d 619, 627 (Ky. 2014) (“A failure to grant a directed verdict based on
the obvious inapplicability of a criminal statute or the insufficiency of the proof
is necessarily palpable error . . . .”).
The standard for a trial court’s consideration of a criminal defendant’s
motion for directed verdict is well-established:
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.2d 186, 187 (Ky. 1991). As a corollary,
“the trial court must grant a directed verdict when, taking the evidence in the
light most favorable to the Commonwealth, it would be clearly unreasonable for
the jury to find guilt.” Birdsong v. Commonwealth, 347 S.W.3d 47, 49 (Ky.
2011). On appeal, our standard of review is “if under the evidence as a whole,
it would be clearly unreasonable for the jury to find guilt, only then is a
defendant entitled to a directed verdict.” Id. (quoting Benham, 816 S.W.2d at
187). 11 Williams first argues that the jury instructions impermissibly lowered the
Commonwealth’s burden by requiring only proof that Williams’ conduct could
have resulted in damage to Leslie’s tangible property, rather than requiring
proof he engaged in conduct intended to cause damage. We set forth in full the
trial court’s instruction on the retaliation charge:
You will find the Defendant guilty of Retaliating Against A Participant in the Legal Process under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
A. That in this County, on or about November 9, 2020, and before the finding of the Indictment herein, he mailed a postcard to Leslie Williams threatening to release her birth date and social security number, which could cause damage to her tangible property;
B. That his intent in doing so was to retaliate against Leslie Williams for her having testified against him in a jury trial held November 4 and 5 of 2020;
AND
C. That his acts related to Leslie Williams being a witness in the legal process referenced above.
At first blush, Williams’ argument appears to have some merit. There is
of course a difference between a defendant simply engaging in conduct that
could cause damage and a defendant engaging in conduct with the specific
intent to cause damage. However, when considered as a whole, it is plain the
instructions required the jury to find that Williams engaged in conduct
intended to damage Leslie’s property. Beyond finding that Williams engaged in
conduct that could damage Leslie’s property, the instructions also required the
jury to find that Williams 1) mailed the postcard as a threat to release Leslie’s
12 birth date and social security number, and 2) that he did do with an intent to
retaliate against her. Quite simply, there is no difference between the findings
required by the instructions that Williams intended to retaliate against Leslie
by threatening conduct that could damage her property, and a finding that he
retaliated by threatening conduct intended to damage her property. Put
differently, the finding of an intention to retaliate by conduct capable of
damaging property is sufficient to also encompass a finding of intention to
damage property, as there would be no underlying retaliatory purpose if the
conduct was not also intended to damage the property. Thus, while the trial
court’s instruction was not an exemplar, it was nonetheless sufficient to
require a finding that Williams intended to damage Leslie’s property. As such,
the instruction does not warrant reversal.
Williams’ second contention is that he was entitled to directed verdict
because the Commonwealth failed to prove he intended to damage Leslie’s
tangible property. As noted above, KRS 524.055 requires proof the defendant’s
conduct damaged or was intended to damage the victim’s “tangible property.”
KRS 524.055(1). 4 Williams asserts the Commonwealth’s theory was that
Williams intended to damage Leslie by divulging her personal information,
resulting in theft of her identity, improper accessing of her bank account,
transferring property, or taking out a loan or obtaining a credit card in her
name. Williams argues each of these involve only damage to electronic assets
4 Conviction may also be obtained by proof of the defendant’s causing or intending to cause bodily injury. Id. 13 rather than “tangible” property, and therefore cannot sustain a conviction for
retaliation under the statute.
Again, we disagree. First, the divulging of sensitive personal information
can result in damage to “tangible” property in the strict sense of that term, i.e.
physical property capable of being touched. For example, one might use
sensitive personal information to access the victim’s home utility account and
cease service, resulting in the spoiling of food in the victim’s refrigerator. Or
the theft of funds from the victim’s bank account might result in an inability to
make mortgage payments, resulting in the loss of the victim’s home in
foreclosure proceedings. In other words, the fraudulent accessing of one’s
electronic accounts plainly can result in physical damage to a victim’s
“tangible” property.
Second, we do not in any event find that the legislature intended such a
strict interpretation of the term “tangible property” as used in the statute. The
evident intent of the statute is to prevent the use of retaliation as retribution or
to chill participation in legal proceedings. We must interpret “tangible”
consistent with this evident intention. Samons v. Ky. Farm Bureau Mut. Ins.
Co., 399 S.W.3d 425, 429 (Ky. 2013) (“We have repeatedly stated that we ‘must
not be guided by a single sentence of a statute but must look to the provisions
of the whole statute and its object and policy.’ And the intent of the General
Assembly ‘shall be effectuated, even at the expense of the letter of the law.’”)
(citations omitted). We thus do not find that “tangible property” as used in the
statute means only property physically capable of being touched, but rather
14 that the property at issue be sufficiently substantial that its damage might
constitute retribution or dissuade a reasonable person from participating in the
legal process. Plainly, one’s bank accounts and other electronic monetary
assets constitute such “tangible property,” as that term is used in the statute,
and Williams’ conduct thus threatened damage to “tangible property.”
Moreover, we also see little reason the General Assembly would have
intended only to prohibit retaliation involving damage to purely physical assets,
while allowing retaliation involving damage to electronic assets. Such an
interpretation would result in the absurdity that damaging a low value physical
object would be criminal, while causing damage to electronic assets of high
monetary value would be entirely permissible. This is an absurd interpretation
we do not afford the language used in the statute. See Univ. of Louisville v.
Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) (“In interpreting a statute, ‘[w]e have
a duty to accord to words of a statute their literal meaning unless to do so
would lead to an absurd or wholly unreasonable conclusion.’”) (quoting Cosby v.
Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004)) (emphasis added). Thus,
Williams was also not entitled to a directed verdict on grounds he did not cause
or intend to cause damage to property capable of physical touch.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Graves Circuit Court.
All sitting. VanMeter, C.J.;Conley, Keller, Lambert, and Nickell, JJ.,
concur. Thompson, J., concurs in result only.
15 COUNSEL FOR APPELLANT:
Emily Holt Rhorer Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General