IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 23, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0584-MR
ROY SHERMAN BUNCH APPELLANT
ON APPEAL FROM WASHINGTON CIRCUIT COURT V. HONORABLE KAELIN G. REED, JUDGE NO. 19-CR-00105
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On October 24, 2019, Appellant Sherman Bunch fired gunshots at
his former girlfriend Julee Gribbins1 and his cousin Tim Marple as they fled
into Marple’s home. Marple’s eight-year-old daughter Veda was in the home at
the time. Bunch also fired shots into Gribbins’ unoccupied vehicle parked near
the home. None of Bunch’s shots struck Marple, Gribbins, or Veda.
A jury in Washington Circuit Court convicted Bunch of two counts of
attempted murder, one count of wanton endangerment in the first degree, and
two counts of first-degree criminal mischief. The jury recommended a total
sentence of thirty-five years and the trial court sentenced in conformity with
1 The Commonwealth identifies Julee’s surname as “Gribbons.” However, the record below and Bunch refer to her as “Gribbins” and we therefore adopt that spelling herein. that recommendation. Bunch 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
Julee Gribbins and Sherman Bunch were in a romantic relationship
beginning in 2014. The relationship was tumultuous and involved numerous
incidents of domestic violence. Gribbins moved out of Bunch’s home in July
2019 and ended her relationship with him by October 2019.
On the night of October 24, 2019, Gribbins visited the home of Bunch’s
cousin and neighbor Tim Marple. During the visit Gribbins, Marple, and Veda
went onto the porch and saw a car driving down the road. Gribbins told
Marple it was Bunch’s vehicle. Veda went back inside, followed later by
Gribbins and Marple. Gribbins then went back outside to start her car before
returning to the home to use the restroom. Gribbins was scared and Marple
therefore accompanied her as she prepared to walk back to her car.
While heading back to her car with Marple, Gribbins opened Marple’s
basement storm door and saw Bunch standing about twenty feet away.
Gribbins screamed “run” and began to run back through the house with
Marple. As they ran Bunch fired shots through the basement doorway and
through a window above the basement door. One shot passed between
Gribbins and Marple. Bunch also fired shots into Gribbins’ vehicle.
Gribbins and Marple barricaded themselves in an upstairs bedroom and
were eventually able to get Marple’s eight-year-old daughter Veda, who had
been in an upstairs bathroom when Bunch began shooting. None were hit by
2 the gunfire, though Gribbins was struck by exploding glass during the
shooting. In fact, she told a 911 operator she may have been struck by a bullet
in the back.
There was no evidence at trial that Bunch ever entered the house. Police
eventually located him after the shooting and took him to the hospital for a
possible overdose of nitroglycerin. While at the hospital Bunch gave a
voluntary statement to Deputy Ryan White in which he stated, among other
things, that he only intended to scare rather than kill Gribbins and Marple,
that he did not know Veda was in the home at the time of the shooting, and
that he would have waited until a different time if he had known Veda was
there.
A grand jury indicted Bunch on three counts of attempted murder, one
count of tampering with physical evidence, and two counts of first-degree
criminal mischief. Bunch’s defense at trial was that he fired the shots with the
intent only to scare rather than kill Gribbins and Marple, and that he did so
under extreme emotional disturbance (“EED”) due to their tormenting of him.
The trial court instructed the jury on EED and gave attempted first-degree
manslaughter and first-degree wanton endangerment instructions as lesser-
included offenses of the attempted murder charges. The trial court refused
Bunch’s request for lesser-included offense instructions as to second-degree
wanton endangerment or attempted first-degree assault under EED.
The jury convicted Bunch on one count of attempted murder as to
Gribbins, one count of attempted murder as to Marple, one count of first-
3 degree wanton endangerment as to Veda, and two counts of first-degree
criminal mischief. The jury recommended a sentence of fifteen years on each of
the attempted murder convictions and five years on the wanton endangerment
conviction to run consecutively, along with concurrent one-year sentences on
the criminal mischief convictions, for a total sentence of thirty-five years. The
trial court sentenced Bunch in accordance with this recommendation.
ANALYSIS
Bunch raises three issues for our review: (1) whether he was
substantially prejudiced by the trial court’s admission of the investigating
deputy’s testimony regarding his reasons for charging Bunch with attempted
murder; (2) whether he was substantially prejudiced by the trial court’s
admission of evidence of prior domestic violence and related convictions; and
(3) whether the trial court erred in refusing to instruct as to second-degree
wanton endangerment and attempted first-degree assault under extreme
emotional disturbance. We review each issue in turn, providing additional
facts as necessary.
I. The trial court did not err in admitting the investigating deputy’s testimony regarding his reasons for charging Bunch with attempted murder.
Bunch argues the trial court erred in allowing Deputy White, the
investigating sheriff’s deputy, to testify as to the reasons for his decision to
charge Bunch with attempted murder. We generally review an allegation of
nonconstitutional evidentiary error for abuse of discretion. Mason v.
Commonwealth, 559 S.W.3d 337, 339 (Ky. 2018). That is, we ask whether the
4 trial court’s ruling was “‘arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.’” Id. (quoting Lopez v. Commonwealth, 459 S.W.3d 867,
872-73 (Ky. 2015)). A nonconstitutional evidentiary error “‘may be deemed
harmless if the reviewing court can say with fair assurance that the judgment
was not substantially swayed by the error.’” Id. at 339-40 (quoting Murray v.
Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013)).
At trial, the Commonwealth played a recording of Bunch’s voluntary
interview with Deputy White in the hospital shortly after the shooting. Bunch’s
counsel then cross-examined Deputy White, eliciting the deputy’s
acknowledgement that Bunch repeatedly said during that interview he
intended only to scare Gribbins and Marple, despite not then knowing he
would be charged with attempted murder. On re-direct examination the
Commonwealth then asked Deputy White what factors caused him to charge
Bunch with attempted murder.
The defense objected and a bench conference was held. The
Commonwealth argued that in cross-examining Deputy White, Bunch’s counsel
challenged the propriety of his decision to charge attempted murder and thus
opened the door to Deputy White’s explanation of his basis for those charges.
The trial court agreed with the Commonwealth and overruled the defense
objection. Deputy White then offered the following testimony regarding the
factors that led him to charge Bunch with attempted murder:
So based upon the evidence that was on the scene at [the location of the shooting], as well as evidence that was recovered [at the location where Bunch was found], being the mask, the gloves, the flashlight, binoculars, the bullet casings, where they was [sic] in 5 the doorway as to where he was. The fact that the bullets, generally most wanton endangerment cases are, you know, someone shooting into the ground, into the air, it’s generally not directly at where the victims were standing. Due to the fact that they were standing in that threshold of that doorway and bullets came through the threshold of that doorway, as well as the mask and gloves, and the jacket you know which showed premeditation. You know and the fact that he said, “If I knew Veda was there I would’ve did it a different night,” you know. Due to those things that’s why I decided to go with criminal intent to commit murder.
A. Deputy White did not state conclusions of law or opine as to the ultimate issue of guilt.
Bunch first contends Deputy White’s testimony regarding his reasons for
charging Bunch with attempted murder was an impermissible conclusion of
law and opinion that Bunch was guilty of attempted murder rather than
wanton endangerment. Before proceeding to the merits, however, we first note
we have no occasion here to consider whether Bunch “opened the door” to
Deputy White’s testimony. Also known as the doctrine of curative
admissibility, “‘opening the door’ . . . is a form of waiver that happens when one
party’s use of inadmissible evidence justifies the opposing party’s rebuttal of
that evidence with equally inadmissible proof.’” Id. at 343-44 (quoting
Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009)) (emphasis added).
Here, Deputy White’s testimony arose because the Commonwealth played
Bunch’s recorded interview for the jury. That recorded interview was not
inadmissible evidence.2 On cross-examination, Bunch then elicited Deputy
White’s acknowledgement that Bunch stated during the interview he only
2 Bunch’s statement to Deputy White was not inadmissible hearsay given Bunch’s status as a party-opponent to the Commonwealth. KRE 801A(b)(1). 6 intended to scare Gribbins and Marple, and that he did not know at the time of
that statement that he would be charged with attempted murder. This too was
not inadmissible. The Commonwealth then asked Deputy White to explain the
basis for charging attempted murder. Thus, because Deputy White’s testimony
explaining the basis for his attempted murder charges was not precipitated by
inadmissible testimony, we need not consider whether Bunch “opened the
door” to Deputy White’s explanation.
As to the merits of Bunch’s contention that the trial court erred in
admitting Deputy White’s testimony, it is well-recognized that “a witness
generally cannot testify to conclusions of law.” Tamme v. Commonwealth, 973
S.W.2d 13, 32 (Ky. 1998). The admission of a witness’s opinion as to the
defendant’s guilt or innocence is likewise improper. Nugent v. Commonwealth,
639 S.W.2d 761, 764 (Ky. 1982) (“The issue of guilt or innocence is one for the
jury to determine, and an opinion of a witness which intrudes on this function
is not admissible . . . .”).
Here, however, Deputy White offered no conclusion of law or opinion as
to Bunch’s guilt or innocence. Rather, he testified to the facts he believed
warranted a charge of attempted murder. Those facts included his location of
items suggesting premeditation in Bunch’s car, Bunch’s firing of bullets
through the doorway where the victims had been standing and the casings
found nearby, the fact Bunch fired the bullets directly at the victims rather
than at the air or ground, Bunch’s statement he would have waited if he had
known Veda was home, and Bunch’s history of domestic violence against
7 Gribbins. At no point did Deputy White either state or imply that the proper
conclusion from these facts was that Bunch was guilty of attempted murder.
Nor did Deputy White opine that he believed Bunch was guilty. His testimony
therefore did not violate the prohibitions against a witness offering conclusions
of law or opinions as to guilt or innocence.
B. Deputy White did not misstate the law regarding wanton endangerment.
Bunch also argues Deputy White misstated the law in testifying that
“generally most wanton endangerment cases are, you know, someone shooting
into the ground, into the air, it’s generally not directly at where the victims
were standing.” The Commonwealth first responds that although Bunch
objected generally to Deputy White explaining the reasons for charging
attempted murder, this issue is not preserved because Bunch did not
thereafter specifically object to Deputy White’s statement regarding wanton
endangerment. When the Commonwealth asked Deputy White to give his
reasons for charging attempted murder, Bunch objected before Deputy White
could answer and a bench conference was held. At the bench conference
Bunch asserted the question was improper because the trial was not a
probable cause hearing, the jury was tasked with determining Bunch’s intent
rather than the basis for his charges, and the question essentially allowed the
Commonwealth to make a closing argument. Bunch thus offered specific
objections to the question before it was answered, and he was not required to
later rearticulate his objections to specific testimony made in response to that
question to preserve the error. See Louisville & N.R. Co. v. Rowland’s Adm’r, 8 215 Ky. 663, 286 S.W. 929, 930 (1926) (“The law does not require idle
formalities, and, the court having ruled the evidence admissible, and proper
exceptions having been reserved, further objection to the same line of
interrogation is not required.”). We thus conclude Bunch’s original objection
was sufficient to preserve this issue.
Bunch contends Deputy White misstated the law regarding wanton
endangerment because shooting into an occupied building is a classic example
of wanton endangerment. Unquestionably there are circumstances where
shooting into an occupied building constitutes wanton endangerment. See
KRS3 508.060, Commentary (1974) (explaining that shooting into an occupied
building with neither the intent nor effect of causing death or injury may
constitute wanton endangerment). We have even previously recognized that
the firing of weapons into occupied buildings is a “prototype” example of first-
degree wanton endangerment. Swan v. Commonwealth, 384 S.W.3d 77, 102
(Ky. 2012).
Deputy White’s testimony cast no doubt on that assertion. Indeed,
Deputy White made no reference whatsoever to occupied buildings in
discussing wanton endangerment. Rather, he testified that wanton
endangerment generally does not involve firing directly at victims. Deputy
White did not testify that firing into an occupied building cannot constitute
wanton endangerment. Nor did he testify that firing into the air or the ground
are the only times in which a finding of wanton endangerment would be
3 Kentucky Revised Statutes. 9 appropriate. Rather, he simply stated that “generally most” wanton
endangerment cases do not involve shooting directly at the victims but rather
involve shooting into the air or the ground. While there are certainly many
circumstances other than shooting into the air or ground that may constitute
wanton endangerment, we do not find that Deputy White’s testimony rose to
the level of a misstatement or mischaracterization of the law.
We further note that even if Deputy White’s testimony had been a
misstatement of the law, any such error would have been harmless. The jury
instructions properly set forth the required elements under KRS 508.060 for a
finding that Bunch was guilty of first-degree wanton endangerment. In
considering an appeal, we “presume that the jury followed the instructions
before it.” Jewish Hosp. & St. Mary’s Healthcare, Inc. v. House, 563 S.W.3d
626, 636-37 (Ky. 2018). We have no reason here to question that presumption.
Thus, because we presume the jury followed the trial court’s correct instruction
regarding the elements of first-degree wanton endangerment, there is no basis
to conclude Deputy White’s testimony had a substantial influence on the jury’s
findings and any alleged error in his brief reference to wanton endangerment
would have been harmless. See Mason, 559 S.W.3d at 339-40.
C. Deputy White did not opine as to the nature of Bunch’s crimes.
Bunch further argues Deputy White’s testimony regarding his reasons for
charging attempted murder also impermissibly created an impression of expert
law enforcement opinion that a verdict on a lesser-included offense of wanton
endangerment was not warranted. Bunch contends the admission of this
10 testimony was thus contrary to our holding in Ordway v. Commonwealth, 391
S.W.3d 762 (Ky. 2013). We conclude that Ordway is clearly distinguishable
from the facts here.
In Ordway, the defendant Ordway was riding in a car with the two
victims. 391 S.W.3d at 772. A scuffle erupted and Ordway shot them. Id. The
car then crashed and Ordway exited. Id. Witnesses testified that Ordway then
returned to the car and again fired at the victims multiple times. Id. Witnesses
testified Ordway also unsuccessfully tried to commandeer the vehicles of
passing motorists at gunpoint. Id. at 772-73. While in jail, Ordway
spontaneously told an investigating detective prior to the initiation of any
custodial interrogation that he had “‘nothing for [him].’” Id. at 773.
Ordway was charged with two counts of intentional murder. Id. at 771.
At trial he claimed self-defense. Id. at 772. The investigating detective testified
over Ordway’s objection that people who legitimately exercise self-defense
typically do not leave the scene of the crime, but rather put their weapon down,
call 911 or otherwise request assistance, and cooperate fully with police. Id. at
775. He further testified “‘[t]hey certainly don’t leave the scene’” and they
“‘don’t try to commandeer vehicles with force with a gun in their hand.’” Id.
We noted that the detective in Ordway thus “opined that [Ordway] did
not act like those who had lawfully protected themselves but, had instead acted
like those who were fabricating a self-protection defense.” Id. We further noted
this “opinion of an experienced and respected police detective that [Ordway’s]
conduct did not match the stereo-typical conduct of an innocent person acting
11 in self-defense authoritatively portrayed [Ordway’s] defense as a fabrication.”
Id. at 777. We therefore reversed for a new trial given the error was not
harmless but rather “clearly devastating to [Ordway’s] claim of self-defense.”
Id.
The facts before us here are starkly different. Deputy White simply
testified that generally, most wanton endangerment cases do not involve
shooting directly at a victim. He did not offer a broad-sweeping assessment of
the elements of wanton endangerment and then testify that Bunch’s conduct
did not fit within those elements. He did not testify that the facts did not fit the
profile of a typical wanton endangerment crime. Nor did he otherwise opine as
to the nature of Bunch’s crimes. His brief statement simply did not rise to the
level of an express or implied opinion that Bunch’s conduct could not
constitute wanton endangerment. We therefore find no error in the admission
of Deputy White’s testimony.
II. The trial court did not err in admitting evidence regarding prior domestic violence incidents.
Bunch next argues the trial court erred in admitting prior bad acts
evidence of previous domestic violence perpetrated by Bunch against Gribbins.
That evidence included Gribbins’ testimony that Bunch physically assaulted
her during a Fourth of July Party in 2018 and that in August 2018 he
forcefully pushed her into a jacuzzi causing her to badly bite her tongue.
Gribbins further testified to a January 2019 incident in which Bunch verbally
and physically attacked her for wearing a knee-length nightgown during a brief
visit by Marple. 12 Gribbins recorded the January 2019 incident on her phone and the
prosecution played that audio recording for the jury. Gribbins testified that
though the recording was muffled, Bunch stated at one point during the
incident that he would “blow [her] f’ing brains out.” The day after this incident,
Gribbins recorded a phone call with Bunch in which she informed him she was
leaving. Bunch told Gribbins during the call “you bring the fucking law and I
will put a bullet through your goddamn head personally.” The prosecution
played this recording for the jury as well.
The trial court admitted evidence regarding these July and August 2018
and January 2019 incidents under KRE4 404(b) for the purpose of proving
intent and motive. The trial court also read a statement informing the jury that
Bunch was convicted of one count of first-degree wanton endangerment, three
counts of terroristic threatening, and four counts of fourth-degree assault as a
result of the incidents. The prosecution elicited testimony that Bunch had pled
guilty to those charges.
Gribbins also testified to other domestic violence beyond the scope of
the trial court’s KRE 404(b) ruling, including an incident in which Bunch
became extremely angry after she overfilled a cat food bowl, his efforts to
isolate her by giving her van to his parents, and his accusations that Gribbins
was having sex with numerous other men including her brothers. Gribbins
also testified she continued to have sex with Bunch even after ending her
relationship with him because she knew based on his explosive behavior she
4 Kentucky Rule of Evidence. 13 would get hurt if she did not. She also told the jury she ultimately blocked
Bunch on all platforms because he was harassing and stalking her. She
further testified she also made efforts to keep her location secret from Bunch
because she knew he would hurt her children and her family.
Bunch moved for a mistrial because Gribbins’ testimony as to these
additional incidents went beyond the trial court’s ruling that the July and
August 2018 and January 2019 incidents were admissible under KRE 404(b).
The trial court agreed the evidence should have come in but denied the motion.
Bunch did not seek an admonition to the jury to disregard the evidence
regarding these additional incidents.
A. Bunch’s allegation of error is preserved.
Before proceeding to the merits we must again address the
Commonwealth’s contention that Bunch has failed to preserve an alleged error,
this time as to admission of the July and August 2018 and January 2019
incidents. Before trial, the Court heard argument via Zoom regarding the
Commonwealth’s intention to introduce that evidence pursuant to KRE 404(b).
However the trial court did not record the hearing. Nor did Bunch prepare a
narrative summary of the hearing for use in this appeal as permitted by Civil
Rule (“CR”) 75.135. The Commonwealth now contends Bunch therefore has not
5 CR 75.13 applied at the time Bunch could have prepared a narrative summary for use in this appeal. That Rule was superseded by Rule of Appellate Procedure (“RAP”) 25 on January 1, 2023. RAP 25 now sets forth the procedure for inclusion of a narrative statement in the record on appeal as a supplement to or in lieu of an unavailable or insufficient official record of trial court proceedings. Pursuant to our Order In re: Applicability of the New Rules of Appellate Procedure (Dec. 29, 2022), all 14 preserved his objection because the record contains neither a recording of the
pre-trial Zoom hearing nor a narrative summary of that hearing.
We will find an objection as to the admission or exclusion of evidence
preserved only if “a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was not apparent
from the context.” KRE 103(a)(1). Here, the trial court noted on the record at
trial that Bunch’s objection to the admission of the KRE 404(b) evidence was
preserved. While the argument of Bunch’s counsel as to the specific grounds
for their objection does not appear in the record, the trial court noted the
morning of trial that they argued at the Zoom hearing the evidence was too
temporally remote to be admitted under KRE 404(b). Thus, because the record
indicates both Bunch’s objection to admission of the KRE 404(b) evidence and
the specific grounds for that objection, we conclude that this issue is
preserved.
We briefly pause to note however that Bunch was not without recourse
for the trial court’s failure to record the Zoom hearing. Both our Civil Rules
then in effect and our new Rules of Appellate Procedure afford litigants the
ability to prepare a narrative summary to cure a deficiency or omission from
the record. CR 75.13; RAP 25. Curiously, Bunch’s counsel did not avail
themselves of this remedy. Though we were nonetheless able to find the
statement and nature of Bunch’s objection in the record, preparation of a
matters pending on or filed after January 1, 2023 are governed under the new Rules of Appellate Procedure. 15 narrative statement is the strongly preferred procedure to cure deficiencies,
insufficiencies, or omissions from the record. This is particularly so given that
in considering an appeal, we are under no obligation to search the record for a
party’s preservation of error. See Phelps v. Louisville Water Co., 103 S.W.3d 46,
53 (Ky. 2003).
B. The July and August 2018 and January 2019 domestic violence incidents, recordings, and convictions were admissible under KRE 404(b) to show intent.
Having determined the issue is preserved, we now consider the merits of
Bunch’s argument. Bunch contends the trial court erred in admitting evidence
of the July and August 2018 and January 2019 incidents and Bunch’s
resulting convictions. Bunch asserts the prejudicial effect of that evidence
substantially outweighed its probative value given the temporal separation of
nine to fifteen months between those incidents and the crime at issue here.
Bunch maintains the trial court also admitted too much evidence regarding
these incidents, and in particular should have excluded the two recorded
phone calls because they were inflammatory and difficult to hear.
KRE 404(b) governs the admissibility of evidence of other crimes, wrongs,
or acts. It provides that such evidence is “not admissible to prove the
character of a person in order to show action in conformity therewith.”
However, the Rule also provides two circumstances in which evidence of other
crimes, wrongs, or acts may be admissible. First, such evidence may be
admissible if “offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
16 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 as 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).
We find no abuse of discretion in the trial court’s application of KRE
404(b) here. As to the first Bell factor of relevance, the trial court must
determine whether admission of the evidence of other crimes, wrongs, or acts
would be in furtherance of one of the permissible purposes under KRE
404(b)(1). Southworth v. Commonwealth, 435 S.W.3d 32, 49 (Ky. 2014). The
17 trial court must also find that the evidence materially bears on an element of
the charged offense or some other fact in dispute. Jenkins v. Commonwealth,
496 S.W.3d 435, 457 (Ky. 2016).
The trial court did not err in finding the Bell relevance factor satisfied
here. We have long held that “threats against the victim of a crime are
probative of the defendant’s motive and intent to commit the crime.” Sherroan
v. Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004). Likewise, “‘evidence of similar
acts perpetrated against the same victim are almost always admissible’” under
KRE 404(b). Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008) (quoting
Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002)).
Such was the case here. The July and August 2018 and January 2019
domestic violence incidents, recordings, and subsequent related convictions
were unquestionably relevant to the charged offense of attempted murder
insofar as they supported the Commonwealth’s case that Bunch shot at
Gribbins with an intent to kill her. In the July 2018 incident Bunch physically
assaulted Gribbins. In August 2018 he again physically assaulted her, this
time pushing her into a jacuzzi and causing her to badly bite her tongue. In
January 2019 he struck Gribbins and threatened to “blow her f’ing brains out.”
The next day he was recorded telling her he would “put a bullet through [her]
goddamn head personally.” This evidence of Bunch’s past violence and threats
to kill Gribbins was plainly relevant to show his intent to kill her on the day of
the shooting. The evidence was also materially related to the disputed issue of
Bunch’s intent, given his raising of a defense that he intended only to scare
18 rather than kill Gribbins and Marple. Thus, because the evidence served a
proper purpose under KRE 404(b) of proving intent and bore directly on a
material issue in the case, the trial court did not abuse its discretion in finding
the Bell factor of relevance satisfied.
The second Bell factor requires a trial court to consider whether the
evidence is sufficiently probative of the defendant’s commission of the other
alleged crimes, wrongs, and acts, i.e. whether “the jury could reasonably
conclude that the act[s] occurred and that the defendant was the actor.” Davis
v. Commonwealth, 147 S.W.3d 709, 724-25 (Ky. 2005). Here the evidence
included Bunch’s criminal convictions after pleading guilty to the conduct at
issue. There was thus no question that Bunch engaged in the prior bad acts
the Commonwealth sought to introduce.
We also find no abuse of discretion in the trial court’s consideration of
the third Bell factor of prejudice. This factor requires the trial court to ask
whether “the tendency of the evidence [is] so strongly to lead the jury into
improper character inferences that that tendency ‘substantially outweigh[s]
[the evidence’s] probative value’ with regard to its proper uses.” Jenkins, 496
S.W.3d at 457 (quoting Bell, 875 S.W.2d at 890). Here, evidence of the July
and August 2018 and January 2019 domestic violence was undoubtedly
prejudicial to Bunch, given its depiction of his pattern of repeated death
threats and physical violence against Gribbins. However, evidence of that
domestic violence was also highly relevant to the issue of Bunch’s intent in
firing at the victims, particularly given both that it involved the same
19 perpetrator and victim and his adoption of a defense that he intended only to
scare rather than harm or kill Gribbins and Marple.
Nor were the incidents so temporally remote that their prejudicial effect
substantially outweighed their probative value. See Woodlee v. Commonwealth,
306 S.W.3d 461, 465 (Ky. 2010) (noting that temporal remoteness “is a factor
to be considered ‘when balancing the probative value of [the bad act evidence]
and the undue prejudice it caused.’”) (quoting Clark v. Commonwealth, 223
S.W.3d 90, 100 (Ky. 2007)). The incidents occurred over a period of six to
seven months beginning little more than a year before the crime at issue. We
cannot find under the facts of this case that the introduction of evidence of
such recent death threats and physical violence resulted in undue prejudice to
Bunch. In sum, while the prior bad acts evidence was undoubtedly prejudicial
to Bunch, the trial court did not abuse its discretion in concluding the
resulting prejudice did not substantially outweigh the significant probative
value of these acts of domestic violence.
Finally, Bunch contends that at a minimum the recordings of the
January 2019 incidents should have been excluded. More particularly, Bunch
argues the recordings are difficult to hear and there is a lack of trustworthiness
in Gribbins’ testimony that Bunch said he would “blow [her] f’ing brains out”
during one of the recorded incidents.
A trial court has broad discretion in determining whether a recording is
of sufficient quality to permit its admission as evidence. Gordon v.
Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995). We have reviewed both
20 recordings and find no abuse of discretion in the trial court’s conclusion they
were of sufficient quality to permit admission.
Nor do we find Gribbins’ testimony in conjunction with the playing of one
of the recordings improper. A witness may provide narrative testimony in
conjunction with the playing of a recording, but such testimony may not
become interpretive. Id. (“It is for the jury to determine as best it can what is
revealed in the tape recording without embellishment or interpretation by a
witness.”). Thus, a witness may not testify (and a proffered transcript may not
indicate) that the recording reveals statements not otherwise intelligible from
the recording itself. Taylor v. Commonwealth, 611 S.W.3d 730, 744 (Ky. 2020).
Otherwise a party’s proffered interpretation of inaudible or unintelligible
portions of the recording would give that party “an unfair advantage in swaying
the jury in favor of one interpretation” of the recording. Id. Rather, the witness
or transcript should acknowledge that the portion is simply inaudible or
unintelligible. See Norton v. Commonwealth, 890 S.W.2d 632, 637 (Ky. App.
1994). And of course, “[a]s with any participant in a conversation, [the] . . .
witness [is] entitled to testify as to his recollection of what was said.” Gordon,
916 S.W.2d at 180 (emphasis added).
Here, Gribbins did just that. When the recording of the January 2019
incident concluded, the prosecutor asked Gribbins if she was assaulted and
what happened. Gribbins responded “he hit me, and then he went in the other
room and he got a gun. And it’s muffled. He told me he’d blow my f’ing brains
out.” Gribbins did not purport to inform the jury the recording revealed Bunch
21 making such a statement. To the contrary, she acknowledged the recording
was difficult to hear and then proceeded to testify as to what she heard Bunch
say at the time the recording was made. This was entirely permissible evidence
of Gribbins’ recollection of Bunch’s statement based upon her participation in
the conversation. There was no error in the admission of that testimony.
C. The accidental admission of additional prior bad acts by Bunch does not mandate reversal.
Gribbins also testified to additional prior bad acts by Bunch that were
beyond the scope of the trial court’s ruling regarding evidence admissible under
KRE 404(b). First, Gribbins testified that Bunch was explosive and violent,
that he stalked her and she felt the need to protect her family from him, and
that she had sex with him out of a fear of violent repercussions for refusing to
do so. Bunch acknowledges that he did not object at trial to the admission of
these statements and therefore requests palpable error review. RCr6 10.26.
Under RCr 10.26, “[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 review, and appropriate relief may be
granted upon a determination that manifest injustice has resulted from the
error.” 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.”
6 Rule of Criminal Procedure. 22 Davis v. Commonwealth, 620 S.W.3d 16, 30 (Ky. 2021) (citations omitted).
Even where 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)).
We do not find that Gribbins’ testimony seriously affected the fairness of
the trial or that without such testimony there is a substantial possibility the
result would have been any different. Her descriptions of Bunch’s explosive,
violent, threatening, and controlling behaviors were merely cumulative. Those
traits were evident from the July and August 2018 and January 2019
incidents, recordings, and convictions. Gribbins’ testimony added nothing the
jury could not already glean from the duly admitted KRE 404(b) evidence. We
therefore find no palpable error or manifest injustice in the accidental
admission of these additional prior bad acts.
Bunch also contends reversible error occurred when Gribbins testified he
became angry with her for overfilling a cat food bowl, took her van and gave it
to his parents, and accused her of having sex with numerous men including
her brothers. This testimony exceeded the scope of evidence found admissible
by the trial court under KRE 404(b) and Bunch immediately objected.
However, he failed to request an admonition to the jury to disregard the
testimony.
23 “The cure for accidental admission of prior bad acts is an admonition to
the jury to disregard the testimony.” Boyd v. Commonwealth, 439 S.W.3d 126,
132 (Ky. 2014). “When an admonition is sufficient to cure an error and the
defendant fails to ask for one, we will not review the error.” Id. at 133. An
admonition is sufficient unless either 1) there is overwhelming probability that
the jury is incapable of following the admonition and a strong likelihood the
impermissible evidence would be devastating to the defendant, or 2) the
testimony was made in response to a question that was both not premised on a
factual basis and inflammatory or highly prejudicial. Sherroan, 142 S.W.3d at
17.
Here, Gribbins’ testimony regarding these additional incidents was brief
and there is no basis to conclude the jury could not have followed an
admonition to disregard it. Though certainly not flattering, the evidence also
was not devastating to Bunch given the other properly admitted evidence of his
pattern of domestic violence. The testimony was responsive to very general
questions that were not inflammatory, prejudicial, or lacking in factual basis,
including “tell me about your relationship,” “tell me about your van,” and “what
began to happen [later in the relationship]?” An admonition thus would have
been sufficient to cure the error. As we have noted, a mistrial should be
granted only “when the error ‘is of such magnitude that a litigant would be
denied a fair and impartial trial and the prejudicial effect could be removed in
no other way.’” Brown v. Commonwealth, 416 S.W.3d 302, 312 (Ky. 2013)
(quoting Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky.
24 2005)). Moreover, a mistrial is “‘an extreme remedy and should be resorted to
only when there is a fundamental defect in the proceedings and there is a
‘manifest necessity for such an action.’” Id. (quoting Woodward v.
Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004)). Thus, because an admonition
would have cured the error and because the testimony in any event was brief
and not devastating given the other properly admitted evidence of Bunch’s
pattern of domestic violence, we find no abuse of discretion in the trial court’s
denial of the motion for mistrial.
III. Bunch was not entitled to lesser-included offense instructions for wanton endangerment in the second degree or attempted first-degree assault under EED.
Finally, Bunch argues the trial court erred in refusing to give the jury
lesser-included offense instructions on second-degree wanton endangerment
and attempted first-degree assault under EED. A trial court should instruct on
a lesser-included offense if, and only if, under the evidence presented a
reasonable juror could have reasonable doubt as to the defendant’s guilt for the
greater charge but find beyond a reasonable doubt that the defendant is guilty
of the lesser charge. Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011).
On appeal, we review allegations that a trial court erred in refusing a requested
jury instruction for abuse of discretion. Caudill, 540 S.W.3d at 367. In so
doing, we construe the evidence in favor of the proponent of the instruction
and ask “whether a reasonable juror could acquit of the greater charge but
convict of the lesser.” Allen, 338 S.W.3d at 255.
25 Bunch contends he was entitled to a second-degree wanton
endangerment instruction as to Gribbins and Marple given his statements that
he intended only to scare rather than kill them and because he was a good
shot. First-degree wanton endangerment differs from second-degree wanton
endangerment in
the mental state and degree of danger created. As to the mental state, both crimes require wanton behavior, but first-degree also requires “circumstances manifesting extreme indifference to the value of human life,” which has been described as “aggravated wantonness.” As to the danger created, first-degree requires a substantial danger of death or serious physical injury, whereas second-degree requires only a substantial danger of physical injury.
Swan, 384 S.W.3d at 102 (citation omitted). The evidence at trial was that
Bunch fired shots directly through the doorway where Gribbins and Marple
had just been standing as they ran back into the home. At least one shot flew
between Gribbins and Marple and Gribbins was struck by exploding glass.
Even crediting evidence that Bunch was a “good shot,” no reasonable juror
could have reasonable doubt that in firing directly at the victims and nearly
hitting them, Bunch manifested extreme indifference to the value of human life
or that his conduct created a substantial danger of death or serious physical
injury rather than mere physical injury. See Combs v. Commonwealth, 652
S.W.2d 859, 860-61 (Ky. 1983) (holding that trial court properly refused to
instruct on second-degree wanton endangerment where defendant fired at and
in the immediate vicinity of victims). The trial court therefore did not abuse its
discretion in refusing Bunch’s request for lesser-included offense instructions
on second-degree wanton endangerment as to Gribbins and Marple. 26 Bunch contends he was also entitled to a second-degree wanton
endangerment instruction as to Veda given both his statements that he did not
know she was in the home at the time of the shooting and her distance from
his firing of the shots. We disagree.
First, Bunch’s alleged lack of awareness that Veda was in the home is
immaterial because liability for his knowingly wanton creation of danger to
Gribbins and Marple transfers as a matter of law to his creation of danger to
Veda, whether he was aware of the risk to her or not.7 KRS 501.060 provides
that “[w]hen wantonly . . . causing a particular result is an element of an
offense, the element is not established if the actual result is not within the risk
of which the actor is aware . . . unless [t]he actual result differs from the
probable result only in the respect that a different person [is] affected.” KRS
501.060(3)(a) (emphasis added). Thus, in the context of wanton endangerment,
if a defendant engages in wanton conduct creating a substantial danger of
injury to persons he is aware will face such risk, he may also be held liable for
the same resulting danger to other persons he does not know he has placed at
risk. Id.; KRS 508.060-070; see also Leslie W. Abramson, 10 Kentucky
Practice, Substantive Criminal Law, § 2:25 (3d ed. 2010) (“Where the actual
result involves harm [or danger] to a different person or different property than
was risked, and the defendant was aware of the risk, his wanton conduct is
7In considering the propriety of lesser-included offense instructions, we construe the evidence in favor of Bunch as the proponent of those instructions. Allen, 338 S.W.3d at 255. We therefore accept for purposes of this analysis his statement to Deputy White that he was unaware Veda was in the home, despite the fact she may have been on the front porch when he drove by the home shortly before the shooting. 27 regarded as the cause of the result.”). As such, because Bunch knowingly
engaged in conduct creating a substantial danger of death or serious physical
injury to Gribbins and Marple, he also may be held liable for the resulting risk
to Veda even if he did not know she was in the home.
Second, no reasonable juror could have found that in shooting blindly
into the home, Bunch did not manifest extreme indifference to human life. Nor
could a juror have reasonable doubt that in shooting into the upstairs window
on the same floor as Veda, Bunch created a substantial danger of death or
serious physical injury to her. We recently noted that in cases involving
shootings, there are “many variables affecting the risk that a bystander will be
seriously injured, including movement of the target, distraction of the shooter,
and environmental elements such as wind.” Hall v. Commonwealth, 645
S.W.3d 383, 394 (Ky. 2022). We also acknowledged that while the skill of the
shooter may be relevant, other factors may outweigh that consideration. Id.
Here, Veda was an eight-year-old child separated from her father in a different
part of the home when shooting broke out. Such circumstances presented a
significant risk that Veda would run to find her father. Bunch blindly shot into
the level of the home where Veda was located and through which she might
have run. He thus also created a substantial danger that Veda would run
directly into the line of gunfire. Had she been shot, it is highly likely her
injuries would have been serious or fatal. Given these facts, no reasonable
juror could have had reasonable doubt that Bunch created a substantial
danger of death or serious physical injury to Veda. As such, the trial court did
28 not abuse its discretion in refusing Bunch’s request for a lesser-included
offense instruction on second-degree wanton endangerment as to Veda.
Bunch also argues the trial court erred in refusing his request for a
lesser-included offense instruction on attempted first-degree assault under
EED. Bunch asserts the attempted first-degree manslaughter instruction
encompassed only the theory that he intended to kill under EED, and that an
attempted first-degree assault instruction would have allowed for a finding that
he intended only to harm. Under the facts of this case, the jury could have
found Bunch guilty of attempted first-degree assault under EED only if it found
1) he intended to cause serious physical injury by means of a deadly weapon or
dangerous instrument, 2) he intentionally took a substantial step in a course of
conduct planned to culminate in that result, and 3) he did so under the
influence of extreme emotional disturbance. KRS 508.010; KRS 506.010; KRS
508.040. However, there was no evidence at trial to support a finding that
Bunch intended to cause serious physical injury. Bunch shot directly at
Gribbins and Marple multiple times with a gun, with at least one bullet flying
directly between them as they ran in fear. The Commonwealth presented
previous threats by Bunch to kill Gribbins. Bunch defended by arguing he
only meant to scare Gribbins and Marple, pointing to his repeated statements
to that effect during his statement to Deputy White. However there was no
proof that in shooting directly at his victims, Bunch had an intention to
seriously injure but not kill them. Thus, because a jury could not have found
the required element of an intention to cause serious physical injury as
29 required for a conviction of attempted first-degree assault, the trial court
properly denied Bunch’s request for such an instruction.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Washington Circuit Court.
All sitting. All concur. Conley, J., also concurs by separate opinion in
which Thompson, J., joins.
CONLEY, J., CONCURRING: I fully concur with the Court’s conclusion. I
write separately to briefly address any seeming contradiction between my
affirming the denial of the second-degree wanton endangerment instruction in
this case, and the reversal of the trial court on that very same issue in Dwight
Taylor v. Commonwealth, 2021-SC-0483, also rendered today.
Kentucky law has held that firing a weapon wantonly in the immediate
vicinity of a person is an act that “manifested an extreme indifference to the
value of human life and, likewise, a reasonable juror could not doubt that his
conduct created a substantial danger of death or serious physical injury to
another person.” Combs v. Commonwealth, 652 S.W.2d 859, 861 (Ky. 1983).
Similarly, we have held firing a gun into a closed door with a person behind it
merited a first-degree wanton endangerment instruction. Paulley v.
Commonwealth, 323 S.W.3d 715, 724 (Ky. 2010). And in like manner, firing
blindly into a residential home was also held to warrant a first-degree wanton
endangerment charge for every person in the homes at the time of the shooting.
West v. Commonwealth, 161 S.W.3d 331, 336-37 (Ky. App. 2004). Finally, we
30 have stated that wantonly firing a weapon in the immediate vicinity of a person
or blindly into a house are “quintessential examples of first-degree wanton
endangerment.” Swan v. Commonwealth, 384 S.W.3d 77, 103 (Ky. 2012).
Therefore, I agree with the Court’s analysis that Bunch’s actions did not merit
a second-degree wanton endangerment instruction.
Thompson, J., joins.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General