IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : MARCH 19, 2009 NOT TO BE PUBLISHED
'*ixyrrMr Courf of 2007-SC-000195-MR
MARK A. COLYER, JR.
ON APPEAL FROM PULASKI CIRCUIT COURT V. HONORABLE JEFFREY THOMAS BURDETTE, JUDGE NO . 06-CR-00203
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Appellant, Mark Colyer, Jr., was convicted by a Pulaski Circuit Court
jury of two counts of first-degree assault and two counts of second-degree
assault. For these crimes, Appellant received sentences of ten years on each
count of first-degree assault, and five years on each count of second-degree
assault. The sentences were ordered to be served consecutively for a total
sentence of thirty years imprisonment . Appellant now appeals to this Court as
a matter of right. Ky. Const. § 110 .
Appellant asserts five arguments in his appeal : 1) that the trial court
improperly admitted evidence of his prior bad acts; 2) that the trial court erred
when it did not provide a jury instruction on the defense of voluntary
intoxication ; 3) that the jury instruction on self-defense improperly stated the
law; 4) that the amendment of the indictment to include additional offenses was prejudicial; and 5) that the trial court erred when it denied Appellant's
motion for directed verdicts. Because the trial court failed to provide an
instruction on the defense of voluntary intoxication, we reverse Appellant's
convictions and sentence .
On the morning of July 7, 2006, Appellant woke up at his brother's
apartment in Somerset, Kentucky, and started drinking alcohol. Appellant
testified that as he prepared to start recording music with his brother, some
girls stopped by the apartment . One of those girls was a fifteen-year-old named
K.E . 1 Appellant was twenty-three years old at the time . After the girls stopped
by the apartment several times, Appellant agreed to come outside and talk with
them. The group eventually ended up at a neighbor's apartment where
Appellant testified he drank more alcohol and took five Klonopin tablets .
Upon returning to his brother's apartment, Appellant was confronted by
two teenage boys, N .S . and T .H., about his involvement with K.E. Accounts of
the confrontation vary. N.S. testified that T.H . told Appellant to leave K.E.
alone and that Appellant then threatened to kill both of them. N .S . also stated
that Appellant showed them tattoos and claimed to be in a gang. A neighbor
named Julius Jackson witnessed the confrontation. He testified that Appellant
walked over to T.H . and N.S . and began to threaten them . Jackson intervened
and told Appellant that if he had a problem with the children he should take it
up with their parents . Appellant provides a different version of events .
1 Since this case deals with criminal acts, the names of all the minors are being withheld. Appellant testified that N .S . and T.H . jumped to the wrong conclusion about
his hanging out with K. E. He said there was initially a small confrontation
between the parties, but afterwards all three went to his brother's apartment to
listen to music .
Several hours later, Sam Hodge, K.E .'s uncle and T.H .'s dad, returned to
the apartment complex . Appellant testified that when Hodge returned home a
group of people were milling about outside . Present in the group were
Jackson, Kenneth Robbins, Angela Robbins, Johnnie Burchfield, and Dearld
Helbert. Other witnesses indicated that these people were not milling about
outside or at least were not near Appellant . Appellant was in the complex's
playground talking with K.E . and a group of girls . Hodge walked up to
Appellant and asked him if he knew the ages of the girls that he was hanging
around. Appellant replied that he knew K. E . was fifteen but didn't know the
ages of the others . At this point, Hodge apparently hit Appellant, though the
testimony of how this happened varied . Appellant testified that as he took a
drink of alcohol, Hodge hit him . Others testified that Hodge hit Appellant when
Appellant menacingly approached him . Angela Robbins testified that Appellant
took the first swing.
Appellant then testified that as he tried to grab a sharp object in Hodge's
hand someone hit him on the back of the head with a chair. Appellant believed
he was getting jumped by everyone who had been outside. He testified that he
blacked out at that very moment and does not remember the ensuing
stabbings . Other witnesses give a different account of the events . Kenneth Robbins
testified that he saw Hodge speak to Appellant but did not witness the fight
between them . He heard Appellant tell Hodge that he would return with his
brother. Kenneth testified that he was not involved in the initial confrontation .
After Appellant left the playground Kenneth sat on the front porch of his
apartment with his wife Angela, Burchfield, and Helbert.
Kenneth then testified that after a short time Appellant returned to the
scene. Appellant asked Kenneth "where is that motherfucker at?" Before a
response could be given, Appellant attacked the party. Kenneth received a
slash on his arm. Burchfield was stabbed in the stomach. Helbert was struck
in the face . Donna Shadoan, who was inside her apartment at the time, heard
the commotion and opened her patio door to look outside . She testified that
Appellant was standing in the door, yelled at her "bitch, get back in the house,"
and stabbed her in the neck.
After the attack Appellant fled the apartment complex . He testified that
he tried to steal a bicycle to get away but was too drunk to ride it. He passed
out in the woods and woke up the next morning unsure of what had happened
the previous day. Appellant then returned to his home in Cincinnati, Ohio .
A Pulaski County Grand Jury indicted Appellant with one count of first-
degree assault "by stabbing Donna Shadoan, Kenneth Robbins, Johnny
Burchfield, and Dearld E. Helbert with a knife ." After Appellant's arraignment,
the prosecutor moved ex parte to amend the indictment to make a separate
first-degree assault charge for each victim . The motion was granted. The Pulaski Circuit Court jury ultimately convicted Appellant of two counts of first-
degree assault, and two counts of second-degree assault and sentenced him to
thirty years imprisonment .
1 . Appellant Should Have Received an Instruction on the Defense of Voluntary Intoxication
Appellant's first allegation of error is that the trial court should have
provided the jury with an instruction on voluntary intoxication . Appellant
tendered the following instruction to the trial court:
Even though the Defendant might otherwise be guilty of first- degree assault under Instruction No. or second-degree assault under Instruction No . , you shall not find him guilty under those Instructions if at the time he committed the offense he was so intoxicated that he did not form the intention to commit the offense .
Appellant's rationale for requesting this instruction was based on his testimony
at trial that he was drinking heavily and taking Klonopin tablets the day of the
assault. Appellant testified that he blacked out right before he began his
assaults and once he regained consciousness was too drunk to ride a bike .
The trial court ruled that a voluntary intoxication instruction was unnecessary
in light of Appellant's ability to testify in detail about what had happened
during the day of the assaults, and therefore, he did not satisfy the statutory
prerequisites for receiving such an instruction.
KRS 501 .080 states that intoxication can be a defense to a criminal
charge if that condition "[negates] the existence of an element of the offense."
2 Appellant testified at trial that on the day of the assault he drank a complete bottle of vodka, a complete bottle of champagne, a complete bottle of some unknown liquor, and several beers. Mere drunkenness alone does not require an intoxication instruction. See
Jewell v. Commonwealth, 549 S .W.2d 807, 812 (Ky. 1977) overruled on other
grounds, Payne v. Commonwealth , 623 S .W .2d 867 (Ky. 1981) . An intoxication
instruction is only necessary when the intoxication was so great that the
evidence indicates the defendant did not know what he was doing in
committing the crimes. Springer v. Commonwealth , 998 S .W.2d 439, 451 (Ky.
1999) .
In this matter, there is enough evidence to support a jury instruction on
intoxication . Appellant's testimony that he drank heavily and used drugs on
the day of the assault alone would not entitle him to an intoxication instruction
if not for his testimony that he blacked out during the commission of the
assaults . Appellant's testimony regarding his intoxication or blacking out may
seem preposterous on its face. However, Appellant's testimony raises a jury
question as to whether Appellant was too intoxicated to form the intent to
commit assault. See Mishler v. Commonwealth , 556 S .W.2d 676, 680 (Ky.
1977) (holding that while defendant's testimony was almost certainly
preposterous, it raised a jury question on whether the defendant was too
intoxicated to form the intent to commit a crime) .
While it is true that Appellant was able to remember events which
occurred before and after the assaults, such a fact does not negate his
entitlement to receive an intoxication instruction. Rather, the key to such
entitlement is whether Appellant could form the intent to commit the crime as
he was committing the crime . See Id . (holding that since the defendant testified that he was blacked out only during the commission of the crime a
jury instruction on intoxication was warranted) . Thus, since the trial court
improperly instructed the jury, a new trial is warranted for Appellant. See Id .
Although Appellant's claim of intoxication seemingly conflicts with his claim of
self-defense, it is a longstanding principle that the trial court is to provide
instructions "applicable to every state of case covered by the indictment and
deducible from or supported to any extent by the testimony." Lee v.
Commonwealth , 329 S .W.2d 57, 60 (Ky. 1959) . If similar evidence regarding
Appellant's intoxication is presented at his retrial, an instruction on voluntary
intoxication must be provided.
Since the failure to provide an instruction on voluntary intoxication
entitles Appellant to a new trial, we now will only review his other allegations of
error to the extent necessary to provide guidance to the trial court on retrial.
II . Trial Court's Self-Defense Instruction
Appellant next argues that the trial court's instruction on self-defense
improperly stated the law and affected the jury's ability to consider that
defense . Appellant argues that the trial court's jury instructions were
erroneous because it did not indicate that if he was mistaken in his belief that
he needed to defend himself he could be found guilty of a lesser included
wanton or reckless crime, such as fourth-degree assault. KRS 503.060 . The
jury instruction on self-defense stated:
Even though the Defendant might otherwise be guilty of first- degree assault under Instruction No. 4, or second-degree assault under Instruction No. 5, if at the time the defendant stabbed he believed or others acting in concert with him, was then and there about to use physical force upon him, he was privileged to use such physical force against as he believed to be necessary in order to protect himself from death or serious physical injury compelled by force or threat at the hands of or others acting in concert with him .
Appellant believes that a more appropriate jury instruction would have been
similar to the instruction from Cooper, Kentucky Instructions to Juries -
Criminal §11 .09 (5th ed. 2007) .
The trial court has a duty in a criminal prosecution to instruct the jury
on the entire law of the case. Lawson v . Commonwealth, 218 S . W.2d 41 (Ky.
1949) . Thus, the jury must receive instructions on any state of the case
supported by the evidence provided. Commonwealth v. Duke, 750 S .W .2d 432
(Ky. 1988) . Instructions on the mistaken belief to use self-defense must be
provided if supported by the evidence . Hilbert v. Commonwealth, 162 S .W .3d
921, 925 (Ky. 2005) . In this matter, the trial court erred by not providing a
self-defense jury instruction which accounted for the lesser-included offense of
fourth-degree assault. Appellant's main defense at trial was that he acted in
self-defense during the altercation with Sam Hodge. Appellant testified that he
initially believed that everyone who was outside was trying to attack him. After
he claimed he blacked out, Appellant ended up injuring people other than
Hodge who apparently were not involved in the altercation. Thus, the jury
could potentially have found that Appellant had a mistaken belief that he
needed to act in self-defense and thus acted recklessly or wantonly in attacking
people who were of no threat to him. At retrial, if evidence similar to that presented at the initial trial is presented, an instruction on fourth-degree
assault should be provided .
III. Introduction of Bad Acts Evidence
Appellant argues that several times the trial court impermissibly allowed
the admission of prior bad acts evidence. KRE 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith . It may, however, be admissible : (1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or (2) If 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.
A three-part inquiry is used to determine if the evidence of prior bad acts
evidence is admissible . Bell v. Commonwealth , 875 S .W .2d 882, 889 (Ky .
1994) ; see also Lawson, The Kentucky Evidence Law Handbook, §
2 .25(3) (4th ed. 2003) . We must determine if the evidence is relevant,
probative, and not overly prejudicial. Bell , 875 S .W .2d at 889 . Using this
framework, we will now review each individual admission of prior bad acts
evidence .
A . Admission of evidence regarding Appellant's behavior towards K.E.
Appellant first argues that the trial court impermissibly allowed the
admittance of evidence regarding Appellant's interaction with K.E . At trial,
several people testified that Appellant had inappropriately touched and
interacted with K.E . throughout the day. Testimony indicated that this belief
led to Appellant's fight with T.H . and N.S. and the ultimate confrontation with Sam Hodge . At retrial, this evidence can be relevant, probative, and is not
overly prejudicial to Appellant. See Id . at 889 .
The interaction between Appellant and K . E . is relevant to explain why
Appellant and Hodge got into a fight at the apartment complex. The evidence
indicates that Appellant's fight with Hodge was the catalyst for the assaults
later in the evening . Thus, since the fight with Hodge was critical to explaining
why Appellant may have assaulted the victims, it was completely relevant for
some purpose other than to prove criminal disposition of the accused . Id . at
889 . This evidence was also probative . Evidence of prior bad acts is probative
if "the jury could reasonably infer that the prior bad acts occurred and that
[the defendant] committed such acts." Parker v. Commonwealth, 952 S .W .2d
209, 214 (Ky. 1997) . Here there was adequate testimony from N .S . and
Jackson that a jury could infer that Appellant did in fact have inappropriate
contact with K. E. or at least that people at the apartment complex thought
there was inappropriate contact. Appellant's counsel even mentioned that
others thought there was inappropriate contact between K . E. and Appellant in
his opening argument .
Finally this evidence's probative value substantially outweighs any
prejudice towards Appellant . Appellant was the first to mention the incident
between him and K. E . during his opening argument and thus any prejudice
against him is low . Additionally, the evidence of Appellant's behavior with K.E .
was critical to understanding how the melee began. Thus, at retrial, the
evidence of Appellant's behavior towards K.E. would be admissible under KRE
10 404(b) (1) since it shows his motive for assaulting the victims and shows how
the ultimate attack came about.
B . Alleged gang tattoos
Appellant next argues that the admission of evidence regarding his
tattoos constituted improper character evidence. At trial, N .S . testified that
Appellant had threatened to kill him and T.H . The Commonwealth
subsequently asked N .S . if Appellant had any tattoos . N.S . replied that
Appellant had several tattoos which he thought indicated that Appellant was in
a gang. Appellant objected and requested a jury admonishment. The trial
court overruled the objection and provided no admonishment. Later in the trial
the Commonwealth asked Appellant if he had certain tattoos . Appellant
admitted he had the tattoos .
Kentucky does not have a case on point for this issue . Other states,
however, have held that evidence regarding a defendant's tattoos is generally
irrelevant if the identification of the defendant is not in issue . State v . Steele,
510 N .W.2d 661 (S.D .1994). It is also error if evidence of a tattoo is used to
establish that the defendant acted in conformity with the message of the tattoo.
Boliek v. Delo, 912 F. Supp . 1199 (W. D . Mo .1995), rev'd due to procedural
default sub nom Boliek v. Bowersox , 96 F.3d 1070, 1071 (8th Cir .1996) . In
this matter the identification of Appellant was not in question . The evidence of
the tattoos could only be used to indicate that Appellant had acted in
conformity with his potential gang affiliations. Such use of this evidence is
prohibited under KRE 404(b) . At retrial, evidence regarding Appellant's tattoos should only be used for identification purposes if necessary and no testimony
regarding his potential gang affiliation should be admitted .
C . Evidence of Appellant's terroristic threatening of N.S . and T.H .
Appellant next argues that the admission of testimony from N.S . and
Jackson that Appellant had threatened to kill N.S . and T.H . was error.
Appellant argues that the incident with N.S . and T .H. had nothing to do with
the ultimate assaults which occurred several hours later. Appellant believes
that this evidence implied that he had a violent nature and made the jury more
likely to reject his self-defense theory . Appellant did object to the substance of
N.S. and Jackson's testimony.
This evidence is relevant to show the series of events which led to the
criminal acts later in the day. It indicates that the entire cause of the assault
is Appellant's interaction with K.E. This evidence shows the beginning of the
conflict with K . E.'s family members that helped lead to the later assaults.
Additionally, this evidence helps rebut Appellant's self-defense theory . The
evidence is probative because there is adequate testimony to support that an
altercation occurred between Appellant, T.H ., and N.S . Finally, this evidence is
not overly prejudicial. The evidence of this altercation is admissible under KRE
404(b) because it shows potential motive and because it is intertwined with
other evidence crucial to the Commonwealth's case . Thus, at retrial, evidence
regarding Appellant's confrontation with N .S. and T.H . is admissible .
D . Informing the jury that Appellant had a criminal record Appellant next argues that the trial court impermissibly admitted
evidence regarding his past criminal record . Detective Lieutenant Doug Nelson
of the Somerset Police Department testified for the Commonwealth . He
testified that he received Appellant's name as a prime suspect in the attack
from police officers working the crime scene at the apartments . He then
testified that he went to the Pulaski County Detention Center and obtained a
photograph of Appellant . Appellant immediately moved for a mistrial which
was overruled . Appellant then requested an admonition which after some
deliberation was granted .
The testimony of Detective Lieutenant Nelson was inappropriate . The
fact that Appellant's picture was at the local jail was not relevant to the trial
and could potentially prejudice the jury. Although the admonition was
sufficient to remove any prejudice, at retrial, this evidence should not be
admitted .
E. Notice of the Commonwealth's intent to use prior bad acts
One of the headings in Appellant's brief mentioned that the
Commonwealth did not provide notice to him pursuant to KRE 404(c) that it
intended to introduce evidence under KRE 404(b) . However, Appellant's brief
fails to pursue this argument . Therefore we treat this allegation of error as
waived . Smith v. Commonwealth , 567 S .W.2d 304, 306 (Ky. 1978) .
V. Amendment of the Indictment
Finally, we address Appellant's argument that the trial court erred when
it granted the Commonwealth's motion to amend the indictment . In the
13 original indictment, the grand jury charged, in a single count, that Appellant
"[c]ommitted the offense of Assault, First Degree. . ." against four named
persons . By the words "the offense of Assault, First Degree" it is clear that only
one offense was, charged . At arraignment, the Commonwealth's Attorney
moved to amend the indictment to state four separate counts of assault, each
relating to a single victim . The motion was granted .
RCr 6 .18 provides that two or more offenses may be charged in the same
indictment "in a separate count for each offense, if the offenses are of the same
or similar character." In order to charge multiple offenses in a single
indictment, the Grand Jury must set forth each offense in a separate count .
The indictment returned by the grand jury contained only one count, and
therefore, under RCr 6.18, charged Appellant with but a single offense of first
degree assault, by stabbing any of the four person named therein.
RCr 6.16 states in pertinent part :
(t)he court may permit an indictment, information, complaint, or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
The amendment of the indictment clearly added three additional offenses, and
therefore violates RCr 6 .16 . Since we are reversing on other grounds and
remanding for a new trial, we direct that, unless the matter is resubmitted to a
grand jury which returns an indictment that conforms to RCr 6 .18, Appellant
may be retried only for the single offense of assault, first degree . VI . Conclusion
Appellant's other allegations of error are either meritless or specific to the
prior trial and we will not address them since he is entitled to a retrial.
For the foregoing reasons, the judgment and sentence of the Pulaski
Circuit Court is reversed and the case is remanded for a new trial .
All sitting. Minton, C .J ., Abramson, Cunningham, Noble, Schroder and
Venters, JJ ., concur . Scott, J., concurs in part and dissents in part by
separate opinion .
COUNSEL FOR APPELLANT :
Thomas More Ransdell Assistant Public Advocate Dept. of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentuc
Henry Albert Flores, Jr. Assistant Attorney General Office of Criminal Appeal Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601 RENDERED : MARCH 19, 2009 NOT TO BE PUBLISHED
6*UFr-rMr (~Vurf of ~irufurhv 2007-SC-000195-MR
MARK A. COLYER, JR . APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT V. HONORABLE JEFFREY THOMAS BURDETTE, JUDGE NO . 06-CR-00203
CONCURRING IN PART AND DISSENTING IN PART
OPINION BY JUSTICE SCOTT
I must respectfully dissent in part as I do not believe the evidence here is
sufficient to support an inference that Appellant did not know what he was
doing, otherwise how could he have done it? Moreover, to the extent Mishler v .
Commonwealth, 556 S.W .2d 676, 680 (Ky. 1977) supports a voluntary
intoxication instruction under these facts, I would overrule it . Nor, do I believe
that the original indictment could have meant anything other than Appellant
stabbed four (4) people . Thus, I cannot agree that a new indictment is
required .