RENDERED: AUGUST 28, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0626-MR
KENNETH EARL DOUGLAS, JR. APPELLANT
APPEAL FROM NELSON CIRCUIT COURT v. HONORABLE JOSEPH GUINAN BALLARD, JUDGE ACTION NO. 23-CR-00230
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
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BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MOYNAHAN, JUDGES.
ACREE, JUDGE: Appellant Kenneth Douglas, Jr. (Kenneth) appeals the Nelson Circuit Court’s order denying his motion to suppress and his various convictions. We affirm in part but vacate Kenneth’s conviction for being a felon in possession of a firearm as a violation of double jeopardy and remand for resentencing.
BACKGROUND
In late June 2023, Kenneth and his cousin, William Joshua Douglas (Josh), were together at Kenneth’s house using methamphetamine. Josh’s girlfriend picked him up later in the evening. Josh left his truck parked at Kenneth’s house. When he returned the next day, chainsaws that were in the truck were missing. He confronted Kenneth who denied any knowledge of the chainsaws.
Josh went to Kenneth’s house on July 4 to inquire once again. That sparked an altercation. Kenneth, holding a 9mm handgun, stated, “I’ll shoot you cuz!” Josh retreated to his truck parked in the driveway. Kenneth fired multiple shots in Josh’s direction, hitting the truck several times but not hitting Josh.
Josh then drove to his mother’s house. Upon arrival, his mother called 911 and officers were dispatched to speak with Josh. While there, officers noted his truck had multiple bullet holes. Josh told officers he had purchased marijuana from Kenneth the previous week, that Kenneth was growing marijuana on the property, and that Kenneth had firearms inside his home.
Deputy Keegan Kirkpatrick and four other officers decided to go to Kenneth’s house to conduct a knock and talk. It was after 11:00 PM. They arrived without sirens or lights. Officers surrounded the house before knocking on several
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doors to make contact. Lights inside the home were visible and vehicles were in the driveway. Officers observed two marijuana plants at the rear of the property.
Kenneth opened the side door that led to the basement. An officer directed him to come out with his hands up. Disregarding the officer’s instruction, Kenneth closed the door and went back inside. A call went out for backup. Three minutes later, Kenneth opened the front door and came out with his hands up. He was apprehended and placed in a cruiser. The call for backup was canceled because Kenneth was in custody. Deputy Kirkpatrick testified there was no evidence or information regarding any other person who may be a danger or a risk to the officers’ safety inside the residence.
Deputy Kirkpatrick testified that while Kenneth was in the cruiser, officers performed a “sweep of the home to secure it for a search warrant” because “at that point [he] was planning on applying for a search warrant.” His motivation for seeking a warrant was Josh’s statement he bought drugs from Kenneth a week earlier, Kenneth shot at Josh, there were marijuana plants growing at Kenneth’s house, there were shell casings in the driveway, and he knew Kenneth was a felon. During the sweep, officers found a shotgun, rifle, ammunition, and drug residue in plain view. The affidavit for the search warrant was submitted hours later, the search warrant issued, and the referenced items found during the search.
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Kenneth moved to suppress the evidence, arguing the arrest had been achieved outside the home, there was no indicia of a dangerous individual posing a threat inside the home, and the officers lacked requisite probable cause or exigent circumstances to justify the warrantless entry. The court ultimately denied this motion on grounds that the officers had a reasonable suspicion that the home may have harbored an individual who posed a threat, and that the evidence located in the house was subject to inevitable discovery.
Kenneth proceeded to trial and was convicted of possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, possession of a controlled substance (methamphetamine), first-degree wanton endangerment, possession of marijuana, and being a second-degree persistent felony offender. The trial court followed the jury’s recommendation for a total sentence of 13 years’ imprisonment.
STANDARD OF REVIEW
“A trial court’s denial of a motion to suppress is reviewed under a two-prong test.” Rhoton v. Commonwealth, 610 S.W.3d 273, 275 (Ky. 2020). Findings of fact are reviewed “under the clearly erroneous standard” and affirmed if those findings are supported by substantial evidence. Id. at 275–76. Review of the trial court’s application of law to the facts is de novo. Id.
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ANALYSIS
I. Trial court did not err in denying Appellant’s suppression motion Kenneth argues the officers exceeded the scope of their purported knock and talk by immediately going to the backyard prior to knocking on any doors. The trial court did not analyze this argument in the body of its order denying the suppression motion. Consideration of the argument is found in a footnote, stating summarily:
Defendant has argued officers had no right to go into the backyard while conducting their knock and talk, but clearly an “immediate risk of danger” exigency existed in this case at the time the officers entered the backyard and they were lawfully in the backyard at the time they viewed the marijuana plants.
(R. at 169–70). No authority is cited for this conclusion. The Commonwealth provides no analysis of Kenneth’s assertion and argument that the officers exceeded the constitutionally permissible scope of the knock and talk.
A succinct statement of the basic rule for knock-and-talk procedures is that “police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public[,]” and they are free to use their other senses while so doing. Pace v. Commonwealth, 529 S.W.3d 747, 757 (Ky. 2017) (quoting 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.3(c) (4th ed. 2007)).
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We believe Kenneth’s argument does not wholly lack merit.
However, we decline analyzing the issue or ruling either way. Rather, we will presume the officers did violate the Fourth Amendment by the way they conducted the knock and talk. To be clear, we presume so exclusively for the purpose of addressing the trial court’s alternative basis for denying the suppression motion, the “inevitable discovery rule.”
We agree with the trial court that “[e]ven assuming the protective sweep of the house was a violation of [Kenneth’s] constitutional rights, law enforcement officers would have still located the evidence in the house as they were going to obtain a search warrant to search the house.” (R. at 169).
The inevitable discovery rule was adopted by the United States Supreme Court to “permit admission of evidence unlawfully obtained upon proof by a preponderance of the evidence that the same evidence would have been inevitably discovered by lawful means.” Hughes v. Commonwealth, 87 S.W.3d 850, 853 (Ky. 2002) (citing Nix v. Williams, 567 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377 (1984)). “The rationale behind the rule is that it does not put the police in a better position than they would have been absent the error, but only puts them in the same position as if there had been no unlawful search.” Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky. App. 1986) (citing Nix, 467 U.S. at 443, 104 S. Ct. at 2508–09).
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Officers were privy to ample information to support a search warrant.
The trial court summarized the information as follows:
1) [Kenneth] had allegedly fired at [Josh], 2) they observed bullet holes in [Josh’s] vehicle; 3) they knew [Kenneth] was a convicted felon and should not be in possession of a firearm, 4) they had information [Kenneth] had sold drugs the week prior, 5) they had information there were drugs and guns in the home, 6)
they had observed marijuana plants in the backyard, and 7) [Kenneth] had retreated into his house after initially opening the door for officers.
(R. at 169). This information, the trial court concluded, established probable cause to obtain a warrant without a protective sweep and therefore the evidence Kenneth wanted suppressed would have been discovered inevitably. We agree. The information Josh provided to officers would have supported a lawful search warrant, which Officer Kirkpatrick unequivocally testified he planned to obtain.
Inevitable discovery here applies because the knock and talk we have presumed was unconstitutional did not put police “‘in a better position than they would have been absent the error[.]’” Johnson v. Commonwealth, 522 S.W.3d 207, 211 (Ky. App. 2017) (quoting Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky. App. 1986)). Accordingly, the trial court properly denied Kenneth’s motion to suppress the evidence collected at his residence.
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II. Sufficient evidence supports the wanton endangerment conviction Kenneth’s next argument is that there was insufficient evidence to support the wanton endangerment conviction. We dismiss Kenneth’s claim that Josh’s testimony was not always credible because assessing the credibility of a witness and the weight given to his testimony rests “within the unique province of the jury.” McDaniel v. Commonwealth, 415 S.W.3d 643, 654 (Ky. 2013).
Kenneth also argues Josh “never testified that Kenneth shot at him as dictated by the instruction.” (Appellant Br. at 32). Therefore, he argues, there is insufficient proof of wanton endangerment. We are not persuaded.
The jury instructions required the jury to find, in relevant part, that “he shot a handgun at William Joshua Douglas.” (R. at 239–40). Josh testified that Kenneth told him, “I’ll shoot you, cuz!” and pointed the gun toward Josh. Kenneth then fired multiple shots, striking the truck multiple times, while Josh was standing at the open driver-side door of the truck. The location of shell casings corroborated this testimony.
The Kentucky Supreme Court has repeatedly held that “pointing a gun, whether loaded or unloaded, is conduct sufficient to support an instruction of first-degree wanton endangerment.” Gilbert v. Commonwealth, 838 S.W.2d 376, 381 (Ky. 1991) (citations omitted). The Supreme Court squarely addressed Kenneth’s issue in Hunt v. Commonwealth, explaining that merely pointing a gun
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in another person’s direction “creates a substantial danger of death or serious physical injury to another person in violation of KRS 508.060 provided there is reason to believe the gun is loaded[.]” 304 S.W.3d 15, 38 (Ky. 2009). Josh had good reason to believe Kenneth’s gun was loaded.
Kenneth does not dispute that he pointed a loaded gun at Josh. He does not deny shooting the truck and specifically the headlights. But he wants us to interpret the jury instruction as requiring proof he actually aimed at Josh and pulled the trigger. That is a foolish argument. If such had been the proof, wanton endangerment would not have been the charge. Kenneth’s argument, in its essence, is that he was such a marksman, Josh was never endangered. The law will never permit a rule that conviction or acquittal will turn on a perpetrator’s talent for hitting what he aims at. Our jurisprudence cited above convincingly defeats Kenneth’s argument.
III. Double jeopardy prohibits multiple firearms possession charges Finally, Kenneth claims double jeopardy prohibits convictions for both possession of a handgun by a convicted felon and possession of a firearm by a convicted felon. We will review this unpreserved argument for palpable error. “A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for
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review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” RCr1 10.26.
“Double jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute ‘requires proof of an additional fact which the other does not.’” Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932)). Our Supreme Court noted that “KRS 505.020(1)(a) and (2)(a) codify this rule.” Id.
This Court added to Kentucky’s double jeopardy jurisprudence in Hinchey v. Commonwealth as it relates to the crime of being a felon in possession of handguns under KRS 527.040. 432 S.W.3d 710, 714 (Ky. App. 2014). Hinchey argued “his possession of two firearms [which happened to be handguns] constitutes a single transaction under KRS 527.040. Therefore . . . his conviction for each firearm violates his rights against double jeopardy.” Id. We reversed the conviction and remanded for entry of a new judgment and sentence. Id.
The Commonwealth argues that “[u]nlike the multiple handgun convictions in Hinchey . . . that [Kenneth] relies on, these were two different types of weapons—a long gun and a handgun.” (Appellee Br. at 19). To that extent, the
1 Kentucky Rules of Criminal Procedure.
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Commonwealth is correct, as is clear from the definitions section of KRS Chapter 527:
(4) “Firearm” means any weapon which will expel a projectile by the action of an explosive.
(5) “Handgun” means any pistol or revolver originally designed to be fired by the use of a single hand, or any other firearm originally designed to be fired by the use of a single hand[.]
KRS 527.010. It is also true that the operative statute itself makes a distinction: “(2)(a) Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.” KRS 527.040.
In response, Kenneth cites the unpublished opinion of Thornton v.
Commonwealth, No. 2013-CA-002131-MR, 2015 WL 865448, at *5 (Ky. App. 2015). Thornton lacks precedent. However, its reasoning is sound, and we rephrase it by citing the applicable statute, KRS 527.040, and published caselaw.
By definition and logic, all handguns are firearms, but not all firearms are handguns. See KRS 527.040(4) and (5). That takes us to KRS 505.020, which says a defendant “may not . . . be convicted of more than one (1) offense when . . . [o]ne offense is included in the other, . . . [such inclusion being shown] by proof of the same or less than all the facts required to establish the commission of the offense charged . . . .” KRS 505.020(1)(a) and (2)(a). See, supra, Burge, 947
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S.W.2d at 809 (“KRS 505.020(1)(a) and (2)(a) codify this rule” of double jeopardy as stated in Blockburger, supra).
The offense of felon in possession of a firearm is fully included in the offense of felon in possession of a handgun because the former can be shown “by proof of . . . less than all the facts required to establish the commission of the” latter. KRS 505.020(2)(a). That is, the charge of felon in possession of a handgun requires proof of all the elements of the crime of felon in possession of a firearm, plus proof the firearm was “designed to be fired by the use of a single hand[.]” KRS 527.010(5).
The distinction between the two crimes is that “[t]he offense is enhanced from a Class D felony to a Class C felony when the firearm possessed is a handgun. KRS 527.040(2).” Wallace v. Commonwealth, 478 S.W.3d 291, 305 (Ky. 2015).
Kenneth’s argument that the sentences imposed violated his constitutional protection against double jeopardy is meritorious. As the Commonwealth correctly noted, “The remedy for a double-jeopardy violation is to vacate or reverse the lesser-included charge to rectify the double-jeopardy violation.” Sevier v. Commonwealth, 434 S.W.3d 443, 453 (Ky. 2014).
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CONCLUSION
For the foregoing reasons, Appellant’s convictions for possession of a controlled substance (methamphetamine), first-degree wanton endangerment, possession of marijuana, and being a second-degree persistent felony offender are AFFIRMED. Appellant’s conviction for being a felon in possession of a firearm is VACATED and this case is remanded to the jurisdiction of the Nelson Circuit Court for resentencing in accordance with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General Frankfort, Kentucky