IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE .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 RENDERED: SEPTEMBER 24, 2015 NOT TO BE PUBLISHED
S5uprrtur (Court of eTcfirttfurkv 2014-SC-000392-MR
PHARO WILSON APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE PATRICIA M. SUMME, JUDGE NO. 12-CR-00765
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Kenton Circuit Court jury found Appellant, Pharo Wilson, guilty of
three counts of criminal attempt to commit murder and found him to be a
second-degree persistent felony offender (PFO); later, in a bifurcated trial, he
was found guilty of being a felon in possession of a handgun. For these crimes,
Appellant was sentenced to a total of seventy years' imprisonment. He now
appeals as a matter of right, Ky. Const. § 110(2)(b), and argues that the trial
court erred by: (1) denying Appellant's Batson motion; (2) allowing the
prosecution to admit text messages without authentication; (3) failing to
instruct the jury on applicable lesser-included offenses; and (4) improperly
allowing Appellant's single prior felony conviction to be used as the basis for
both his felon in possession of a handgun and PFO charges. I. BACKGROUND
Carolyn Sleet called police to report an armed robbery during a poker
game at her apartment in the City Heights housing projects in Covington,
Kentucky. She informed the 911 operator that one of the players robbed the
others at gunpoint. When police responded, Sleet identified the robber as
Appellant and indicated that he played several hands of cards before robbing
the other players. Sleet told police that Appellant also pointed the gun at her,
but that he left after she begged him to do so. Sleet described Appellant's attire
and told officers that his girlfriend, Keyairow Green, also lived in the projects.
Several officers left Sleet's apartment and went to Green's, where police found
her alone. Police searched the apartment and did not find Appellant, but they
did find his wallet on Green's kitchen table.
When the officers discovered that Green's mother, Carla Mullins, also
lived in City Heights, they went to her apartment in search of Appellant. When
no one answered the door at Mullins's apartment, one of the officers returned
to Green's apartment, where he discovered Mullins had gone to check on
Green, who was eight months pregnant. Mullins indicated that she had left
her door unlocked in case Green needed her during the night and that she had
awoken earlier to -Appellant pacing back and forth in her apartment. Mullins
assumed something was wrong with Green when Appellant asked Mullins
where Green was, and left her apartment to check on her daughter. Mullins
gave the officers a key to her apartment and they returned to her unit.
2 When they arrived back at Mullins's apartment, the officers divided, with
some going to the rear of the building and others to the front door. One of the
officers at the front door heard shouting of "show me your hands" followed by
gunshots. At that point, the two officers stationed at the front door went to the
back of the building to assist, where they found the officers at the back of the
building engaged in a shootout with a man hanging out of a second-story
window. One of the officers was shot in the big toe and another received a
grazing wound to his leg. In the ensuing confusion, the man shooting at the
officers retreated into the apartment, eventually escaping out the front door
and running into a wooded area behind the building.
Based on the card players' statements and the belief that it was
Appellant who shot at officers from Mullins's apartment, an arrest warrant was
issued for Appellant. Appellant was arrested several days later and eventually
indicted and charged with three counts of attempted murder, one count of
first-degree assault, three counts of third-degree assault, possession of a
handgun by a convicted felon, and of being a second-degree PFO. In a separate
indictment, Appellant was later charged with one count of first-degree robbery.
A Kenton Circuit Court jury found Appellant guilty of three counts of attempted
murder, acquitted him of first-degree robbery, and found him to be a second-
degree PFO; later, in a bifurcated trial, he was found guilty of being a felon in
possession of a handgun. For these crimes, Appellant was sentenced to a total
of seventy years' imprisonment and now appeals to this Court.
3 II. ANALYSIS
A. Batson Challenge
Appellant first argues that the trial court erred in denying his Batson
challenge. Appellant, an African-American male, objected to the
Commonwealth's peremptory strike of an African-American female, the last
remaining member of a minority on the jury panel.
During the Commonwealth's voir dire, it asked the jury panel several
questions concerning the City Heights housing project where the shots were
fired. In response to these questions, a few of the jurors acknowledged that
they had knowledge of.the projects and had family or friends who had lived
there at some point. One of those jurors indicated that his wife and brother-in-
law lived there twelve or thirteen years ago and that he had a co-worker who
lived at City Heights at one time. Another juror indicated that she had friends
who had lived in the housing projects forty-five years earlier and yet another
juror indicated that her husband had lived there many years ago as a child.
The juror in question, M.D., was the only juror who responded that she had
relatives living in the projects at the time of Appellant's trial. In fact, while she
denied knowing their exact address or ever visiting their apartment, she said
her two nephews lived on the same street as the building from which the shots
were fired in this case. Her nephews were also close in age to Appellant and
she stated "they know just about everybody up there." She indicated she
believed it was a "rough" neighborhood based upon information her nephews
had relayed to her.
4 When the parties were exercising their peremptory strikes, the
Commonwealth moved to strike M.D. Appellant's counsel objected to the
strike, arguing that it violated the dictates of Batson v. Kentucky, 476 U.S. 79
(1986). As this Court has stated:
In Batson, the U.S. Supreme Court outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. Id. at 96-98, 106 S.Ct. at 1722-24. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. at 96-97, 106 S.Ct. at 1722-23. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98, 106 S.Ct. at 1724.
Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 1992). We will follow
this three-prong test in analyzing Appellant's claim of error, keeping in mind
that "the ultimate burden of showing unlawful discrimination rests with the
challenger." Rodgers v. Commonwealth, 285 S.W.3d 740, 758 (Ky. 2009). We
give the trial court's ruling on the Batson motion great deference and will
review for clear error. Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky.
2012).
First, Appellant had to make a prima facie showing that the
Commonwealth used its peremptory challenge to strike M.D. on the basis of
her race. The trial court found that the Appellant made this showing, and we
need not address this first matter further, as "once the Commonwealth has
offered a race-neutral explanation for the peremptory challenge and the trial
court has ruled on the ultimate issue of discrimination, the preliminary issue
5 of whether the defendant has made a prima facie showing is moot." Gamble v.
Commonwealth, 68 S.W.3d 367, 371 (Ky. 2002).
Once Appellant made his prima facie case, the burden shifted to the
Commonwealth to provide a race-neutral explanation for its strike. We have
held that this race-neutral reason does not have to rise to the level of a strike
for cause and that "[t]he test is whether the prosecutor has a good-faith belief
in the information and whether he can articulate the reason to the trial court
in a race-neutral manner which is not inviolate of the defendant's
constitutional rights." Snodgrass, 831 S.W.2d at 179. "At this step, all that is
required is that a prosecutor's articulated reason for exercising a peremptory
challenge be racially neutral on its face." Chatman v. Commonwealth, 241
S.W.3d 799, 803-04 (Ky. 2007). "This step sets a fairly low bar for the
Commonwealth to meet." Mash, 376 S.W.3d at 555. Furthermore, the United
States Supreme Court has held, "the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race neutral."
Hernandez v. New York, 500 U.S. 352, 360 (1991).
Here, the Commonwealth gave several reasons for striking M.D.
including her body language, her "intimate knowledge of City Heights" due to
the fact that her nephews lived there, that her nephews knew "just about
everybody up there," and that her nephews had told her it was a rough
neighborhood. The Commonwealth did not believe M.D. was forthcoming when
questioned about whether she knew any members of two of the area's families,
6 saying that it would be hard to believe than anyone who lived in City Heights
would not have some knowledge. The Commonwealth also pointed out that
M.D.'s address on the jury list was just a few blocks away from one of the
prominent streets in the housing project.
Then, defense counsel pointed out that M.D. does not live in City Heights
and does not even know the exact location at which her nephews live.
Appellant's counsel stated that there were several other jurors who had familial
ties to City Heights who were not stricken. But, the Commonwealth countered
that those ties were old, whereas M.D. had family members currently living on
the same street as that on which the crime occurred. The Commonwealth
stated that it was a distinct possibility that M.D.'s nephews knew Appellant
since he spent a lot of time in City Heights and was around their age. The
prosecutor believed these factors made M.D. more susceptible to outside
influence and information without regard to her skin color and stated that this
was the reason it wanted to strike her from the venire.
The reasons offered by the Commonwealth for striking M.D. are all
facially race-neutral, as they could apply to jurors of any racial background.
As there was no discriminatory intent inherent in the Commonwealth's
explanation, the trial court did not err in this regard.
Appellant argues that the trial court's analysis stopped when it found
that the Commonwealth gave a facially race-neutral reason for the strike rather
than moving on to Batson's third step. We disagree, as the trial court went into
an extensive review of its observations regarding the juror in question.
7 The third prong of Batson requires the trial court to "determine whether
the defendant has carried his burden of proving purposeful discrimination."
476 U.S. at 98. "In other words, having properly found that the
Commonwealth's proffered reason was, on its face, racially neutral, the final
step was for the trial court to determine if the Commonwealth's race-neutral
reason was actually a pretext for racial discrimination. Because the trial
court's decision on this point requires it to take credibility and demeanor of the
attorneys into account, the trial court's ultimate decision on a Batson challenge
is akin to a finding of fact, which must be afforded great deference by an
appellate court." Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007).
The trial court indicated that it was very cognizant of M.D.'s responses
during voir dire due to the fact that she and Appellant were members of the
same minority. It also noted the nature of the small community in which the
events leading up to the shooting took place. Without making a presumption
about whether M.D. actually knew anything concerning the crime, the trial
court noted that she does have two nephews who lived close by and that it is
difficult not to draw inferences from that fact. The trial court stated that it
carefully observed M.D.'s body language during voir dire, anticipating a Batson
challenge, and noticed an immediate shift when Appellant's defense attorney
started asking voir dire questions. According to the trial court, M.D. relaxed,
smiled, and was responsive to Appellant's counsel's questions "which was not
how she was to the prosecution." When Appellant's counsel pointed out that
there were several jurors who were not responsive to the Commonwealth's
8 questions, the trial court agreed, but again pointed to the "notable" difference
between when the Appellant's attorney asked questions and when the
Commonwealth did the same.
Appellant argues that the Commonwealth's reasons were not enough and
that the trial court did not properly apply Batson's third step. He points to the
fact that the "small community" referenced was predominately African
American and that this could not be a race-neutral reason. However, we note
that none of the other jurors who stated they knew someone who had lived in
the neighborhood were African American.
Appellant also argues that the Commonwealth's statement that it was
uncertain if M.D. was truthful about not knowing any members of two families
in the area (who happened to be African-American families related to one of the
individuals Appellant allegedly robbed at gunpoint) is not a race-neutral
reason, as it was akin to saying that because M.D. was black, she should know
the other black families in the area. Having viewed the video record, we find no
such overtones in the Commonwealth's statements. As previously stated,
M.D.'s address listed on the jury sheet was in close proximity to City Heights
and she had two nephews who lived there. Given the context, it appears that
the prosecutor was commenting on the proximity of M.D.'s address to City
Heights and the fact that she had family living in the projects.
The trial court went to great lengths to discuss its observations of M.D.
during voir dire and ultimately found that Appellant failed to carry his burden
of proving purposeful discrimination. The trial court sat in a unique position to
9 assess the Commonwealth's credibility and we give its determination great
deference. We hold that there was no clear error in the trial court's denial of
Appellant's Batson challenge.
B. Authentication
Appellant next argues that the trial court erred in allowing the
Commonwealth to admit text messages without proper authentication. These
messages included, among other things, statements indicating that the person
who sent the texts identified himself as "pharo." The messages also included
statements concerning the shooting.'
1 The text messages were submitted along with a notarized affidavit from the records custodian from Cincinnati Bell certifying that the cell phone records were true and accurate and "were made at or near the time of the occurrence of the matters set forth in the records by (or from information transmitted by) a person with knowledge of those matters. These records are kept in the course of Cincinnati Bell's regularly conducted business and were made by the regularly conducted activity as a regular practice."This certification was in line with KRE 902, entitled "Self-Authentication," which reads, in pertinent part: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(11) Business records. (A) Unless the sources of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies: (i) Was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; (ii) Is kept in the course of the regularly conducted activity; and (iii) Was made by the regularly conducted activity as a regular practice.
10 At trial, Appellant's counsel argued that it was not clear that all of the
text messages in question were sent from Appellant, as, on a few occasions, the
person texting from the phone number identified himself as "mario." Defense
counsel pointed out that all of the messages in which the individual identified
himself as "pharo" occurred the day before the shooting and that there is no
proof that Appellant was the one who sent the text messages in question
regarding the shooting.
The prosecution countered at trial that, in its opening statement, the
defense alleged that Appellant only fired two shots and described them as being
two stories over the police officers' heads—in stark contrast to testimony which
would be introduced at trial by the officers that Appellant fired approximately
ten shots directly at them. Therefore, the prosecution particularly wanted to
introduce one of the text messages that read, "how many got shot cuz I was
letting loose" to contradict the opening statement. The Commonwealth argued
this would allow the jury to infer that Appellant fired more than two shots and
would also tend to prove that Appellant knew he was shooting at more than
one police officer (which, it argued, was relevant, given that Appellant was
charged with three counts of attempted murder). The prosecution also wanted
to introduce a few other text messages to show that it was Appellant's phone
and to show that people began texting Appellant at that number when they
found out he had been in a shootout with police.
11 Ultimately, the trial court allowed the introduction of some of the text
messages, finding that the connection between Appellant and the phone was
clear. The trial court went on to find that the records were self-authenticating
business records under KRE 902 and created a significant indicia of reliability.
The admitted text messages included several in which the person at the phone
number in question identified himself as "mario" and several in which he
identified himself as "pharo." The admitted messages also included messages
related to the shooting.
Appellant agrees that the messages were obtained from the phone
company and amounted to business records made in the ordinary course of
business, however, he argues that, in spite of this fact, they were still not
properly authenticated, as the prosecution failed to prove that Appellant was
the person who actually sent or received the text messages. The
Commonwealth responds that these messages were properly authenticated, as
two witnesses testified that the phone number for which the records were
obtained was the number they used to get in touch with Appellant.
Specifically, Carla Mullins testified that she had Appellant's number saved in
her phone under "Pharo" and that when she wanted to call him, she would find
that entry in her phone and press call. When she called the number saved in
her phone, Mullins testified that she reached Appellant. Keyairow Green also
testified that she had used Mullins's cell phone to initiate and receive calls and
text messages from Appellant. She stated that Appellant's number was saved
in Mullins's phone under the name "Pharo" and that it was a reliable way to get
12 in touch with Appellant and that he replied to text messages sent to that
number.
The Commonwealth argues that there is ample evidence that Appellant
sent the messages. Not all of the messages certified by Cincinnati Bell and
included in the record were admitted at trial, as they were redacted, but the
Commonwealth points out that the individual responding from the number in
question identified himself as "pharo" in the text messages several times. This
Court notes that it examined the records carefully and found no less than six
instances in which the individual identified himself as "pharo" and one in
which he answered "p.h.a.r.o" when another person asked who he was. The
Commonwealth also notes in its brief that Appellant eventually conceded at
trial that he was the individual who fired the shots and that some of the
admitted text messages discussed details about the shooting. Having
explained the parties' arguments, we turn now to the law surrounding
authentication.
"The concept of authentication (or the laying of a `foundation,') relates to
a trial court's need for preliminary proof of two things: (1) the pertinence of the
proposed evidence to the litigation, and (2) that a document is what its
proponent claims it to be." Bell v. Commonwealth, 875 S.W.2d 882, 886 (Ky.
1994). Furthermore, "a party seeking to introduce an item of tangible evidence
need not satisfy an 'absolute' identification requirement, and evidence is
admissible if the offering party's evidence reasonably identifies the item. We
grant trial courts wide discretion over issues relating to the admissibility of
13 tangible evidence because the foundation sufficient for admissibility will vary
based on the nature of the item . . . ." Grundy v. Commonwealth, 25 S.W.3d
76, 80 (Ky. 2000) (footnote omitted). "On appellate review, the trial court's
finding of authentication is reviewed for abuse of discretion." Johnson v.
Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). For the reasons that follow,
we affirm the trial court and hold that it did not abuse its discretion.
Kentucky Rules of Evidence 901(a) provides: "The requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question
is what its proponent claims." The rule goes on to provide examples of
authentication that comport with the rule and specifically includes "[testimony
of witness with knowledge. Testimony that a matter is what it is claimed to
be." KRE 901(b)(1). Another example the rule gives is "[d]istinctive
characteristics and the like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with
circumstances." KRE 901(b)(4).
As previously noted, Appellant does not argue that there was any
problem with the text messages themselves or that they had been modified
from their original form, but rather, Appellant argues that the Commonwealth
did not prove that Appellant was the individual who sent and received them.
However, as this Court held in Ordway v. Commonwealth, 352 S.W.3d 584, 593
(Ky. 2011) when reviewing the authentication of a letter purportedly written by
the appellant in that case: "[t]he burden on the Commonwealth to establish
14 that the letter was written by Appellant is 'slight' and requires only a prima
facie showing. Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky.2010).
The contents of the letter, taken in conjunction with the circumstances, can be
relied upon in determining authentication. KRE 901(b)(4)."
As detailed above, two witnesses with knowledge of Appellant's cell phone
number testified that they both used the number in question to get in touch
with him. This was proper evidence for authentication pursuant to KRE
901(b)(1). Furthermore, the content of the texts, including several instances in
which the individual sending and receiving text messages at that number
identified himself as "pharo" and gave details concerning the shooting provided
authentication, just as the contents of the letter in Ordway did.
We hold that the Commonwealth's evidence reasonably identified the text
messages as required by Grundy, 25 S.W.3d at 80. Therefore, given the
testimony presented at trial and the context of the text messages, the trial
court did not abuse its discretion in admitting them.
Appellant also argues that the text messages amounted to inadmissible
hearsay. Appellant only cites one case from the Pennsylvania Supreme Court,
Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011), for this premise. In
Koch, a police detective had transcribed messages from Appellant's phone.
This differs markedly from the business records secured from the phone
company in the case at bar. Furthermore, KRE 803(6) provides an exception to
the prohibition against hearsay for "Hecords of regularly conducted activity."
Appellant admits that the records in this case were regularly maintained by
15 Cincinnati Bell. Since the records of the text messages fall under an exception
to our general prohibition against hearsay, and Appellant cites no case law
binding upon this Court that suggests otherwise, we will delve into the issue no
further and affirm the decision of the trial court.
C. Jury Instructions
Appellant next alleges that the trial court erred when it failed to instruct
the jury on applicable lesser-included offenses. Specifically, Appellant
tendered jury instructions to the trial court which would have instructed the
jury on the lesser-included offense of wanton endangerment in both the first
and second degrees. The trial court rejected these proffered instructions and
instructed the jury only on three counts of attempted murder and three
degrees of assault as lesser-included offenses.
This Court reviews a trial court's refusal to give a lesser-included offense
instruction under the 'reasonable juror' standard set out in Allen v.
Commonwealth:
[W]e review a trial court's decision not to give a criminal offense jury instruction under the same "reasonable juror" standard we apply to the review of its decision to give such an instruction. See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). Construing the evidence favorably to the proponent of the instruction, we ask whether the evidence would permit a reasonable juror to make the finding the instruction authorizes. We typically do not characterize our review under this standard as either de novo or for abuse of discretion . . . . In this context, the characterization makes little difference and so the inconsistency is more apparent than real. . . . Regardless of the characterization, however, the "reasonable juror" is the operative standard, in the appellate court as well as in the trial court.
16 338 S.W.3d 252, 255 (Ky. 2011). Therefore, we construe the evidence most
favorably to the proponent of the instruction and "ask whether the evidence
would permit a reasonable juror to make the finding the instruction
authorizes." Id.
The trial court has the duty in a criminal case "to prepare and give
instructions on the whole law of the case, and this rule requires instructions
applicable to every state of the case deducible or supported to any extent by the
testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999).
However, "lain instruction on a lesser-included offense is appropriate if and
only if on the given evidence a reasonable juror could entertain reasonable
doubt of the defendant's guilt on the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty of the lesser offense." Skinner v.
Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993).
In order for the jury to convict Appellant of criminal attempt to commit
murder, it had to believe beyond a reasonable doubt that Appellant shot at the
officers with the intent to kill them and that this constituted a substantial step
in a course of conduct planned to result in their death. Appellant insists that
the instructions should have contained the lesser-included offenses of first-
and second-degree wanton endangerment. Under such instructions, the jury
would have had to believe beyond a reasonable doubt either that—for first
degree wanton endangerment—Appellant discharged a handgun, thereby
wantonly creating a substantial danger of death or serious physical injury to
the officers and that this conduct manifested an extreme indifference to the
17 value of human life; or—for second-degree wanton endangerment—that
Appellant discharged a handgun and, thereby, wantonly created a substantial
danger of physical injury to the officers.
We find the commentary accompanying the statutes for first- and
second-degree wanton endangerment instructive here. The commentary
provides: "The offenses created by KRS 508.060 and 508.070 can best be
described by use of this hypothetical situation: D, with no intent to kill or
injure but with an awareness of the risk involved, shoots a gun into an
occupied building, thereby consciously disregarding the risk of death or injury
to its occupants." We have held: "Miring a weapon in the immediate vicinity of
others is the prototype of first degree wanton endangerment. This would
include the firing of weapons into occupied vehicles or buildings." Swan v.
Corn., 384 S.W.3d 77, 102 (Ky. 2012) (quoting Robert G. Lawson 86 William H.
Fortune, Kentucky Criminal Law § 9-4(b)(2), at 388 n. 142 (1998) (internal
quotation marks omitted)).
In Swan, the appellants had fired shots into the ceiling of a home toward
specific individuals located in the front of said home. Id. at 84-86. This Court
held that one of the individuals in the home was not wantonly endangered, as
she had hidden in the other end of the home, and no evidence was presented at
trial that "a bullet was fired in [her] direction." Id. at 103. That is not the case
here. The officers testified that Appellant had the gun angled downward
toward them, and one of the officers testified that he saw Appellant aiming at
him. Appellant was not merely firing into a home where he could not actually
18 see his would-be victims, as was the appellant in Swan—and not testimony
was presented to that regard. Rather, from the evidence, we cannot hold that
"a reasonable juror could entertain reasonable doubt of the defendant's guilt on
the greater charge, but believe beyond a reasonable doubt that the defendant is
guilty of the lesser offense." Skinner, 864 S.W.2d at 298. The evidence in the
present case simply does not support a finding that Appellant acted with no
intent to kill or injure the officers.
Appellant attempts to distinguish the case at bar from this Court's
decision in Goodman v. Commonwealth, No. 2007-SC-000290-MR, 2008 WL
2167538, at *5 (Ky. May 22, 2008), where we held, "[t]he totality of the evidence
demonstrates that Appellant's shots were intentional and purposeful. No
wanton endangerment instruction was warranted and there was no error." In
that case, evidence was presented at trial that the appellant told one of the
officers that he would shoot her in the head. Appellant argues that the fact
that he made no such statement to police is enough to set his case apart from
Goodman. However, while Appellant did not explicitly tell the officers that he
planned to shoot them in the case at bar, evidence was presented that
Appellant yelled something like "fuck you bastards" to the police before he
began shooting. Coupled with the officers' testimony that Appellant was
pointing the gun in their direction and/or aiming at them, a reasonable juror
could not have found that he acted wantonly rather than intentionally.
Defense counsel attempted to use the fact that only two shell casings
were recovered from the scene to argue that Appellant only fired two shots,
19 which amounted to warning shots fired twenty feet above the officers' heads.
However, the fact that officers fired a total of 32 rounds and only 20 of their
shell casings were recovered from the scene shows that not all of the casings
were recovered. Two of the officers were shot—one in the toe and another
received a grazing wound to his leg. The properly-admitted text messages
included one text sent by the number known to at least two witnesses to be
Appellant's which read "how many got shot cuz I was letting loose." This
statement provides more evidence of Appellant's intent. In fact, the Appellant
points to no evidence contained in the record that he acted wantonly (and nor
do we find any).
We also distinguish this case from our recent opinion in Hall v.
Commonwealth, No. 2012-SC-000423-MR, 2015 WL 4967454, at *11 (Ky. Aug.
20, 2015) (not yet final as of the rendition of this opinion). In Hall, the
appellant argued that he should have received a directed verdict on four counts
of wanton endangerment. The appellant therein used a high-power hunting
rifle to kill two of his neighbors, one of whom fell in the doorway of his home
when struck. There were four children inside the home and, in addition to two
counts of murder, the appellant was convicted of first-degree wanton
endangerment as to the children. Id. That case is unlike the present case.
Here, Appellant was aiming at the officers when he fired his weapon. Had
Appellant been charged with attempted murder as to bystanders at whom he
was not intentionally aiming, an instruction for wanton endangerment would
have been warranted. However, those are simply not the facts with which we
20 are presented. "To be convicted, the defendant must have both acted with the
requisite mental state and created the danger prohibited by the statute." Id.
There was no evidence presented that Appellant acted anything less than
intentionally when firing at the officers.
The evidence at trial would not have allowed a reasonable juror to find
that Appellant had committed the crime of wanton endangerment. Therefore,
the trial court did not err in failing to instruct the jury on first- and second-
degree wanton endangerment as a lesser included offense.
D. Prior Felony Conviction Appellant's final argument is that the trial court improperly allowed
Appellant's one prior felony conviction to be used as the basis for his
convictions for both felon in possession of a handgun and second-degree PFO.
At trial, the parties stipulated that Appellant had only one prior felony, and the
trial court ruled that the possession of a handgun count could not be
enhanced, thus limiting any potential PFO enhancement to Appellant's
criminal attempt to commit murder convictions.
This Court decided this very issue only two years ago in Oro-Jimenez v.
Commonwealth, 412 S.W.3d 174, 180 (Ky. 2013). Prior to that case, this Court
had never ruled on a double enhancement case where one prior felony
conviction had been used to both establish an offense (felon in possession of a
handgun) and enhance the sentence for another. However, we noted that "tile
Court of Appeals addressed this scenario in O'Neil v. Commonwealth, 114
S.W.3d 860 (Ky.App.2003). In O'Neil, there was no double enhancement when
21 a single prior felony conviction was used to establish the offense of possession
of a handgun by a convicted felon and to enhance a second-degree burglary
sentence. 114 S.W.3d at 864." In Oro-Jimenez, we adopted the Court of
Appeals' reasoning in O'Neil and held "the use of Appellant's single prior felony
conviction to establish the offense of possession of a handgun by a convicted
felon and to enhance the first-degree robbery sentences under the PFO statute,
did not constitute double enhancement. Thus, the Commonwealth's use of
Appellant's single prior felony conviction was not error . . . ."
Just as in Oro-Jimenez, Appellant's prior felony was used to create his
charge of felon in possession of a handgun (but not also to enhance it) and to
enhance his penalties for other felonies. We see no reason to depart from our
recent precedent which considered this very issue, and, therefore, affirm the
trial court.
HI. CONCLUSION For the foregoing reasons, we affirm Appellant's convictions and
corresponding sentence.
All sitting. All concur.
22 COUNSEL FOR APPELLANT:
Linda Roberts Horsman, Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway, Attorney General of Kentucky Matthew Robert Krygiel, Assistant Attorney General