Ruben Johnson, IV v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 13, 2023
• Docket: 2022 SC 0185
• Status: Unknown

Opinion

RENDERED: DECEMBER 14, 2023 TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0185-MR

RUBEN JOHNSON, IV APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE MARY SHAW, JUDGE NO. 21-CR-000724

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

AFFIRMING IN PART AND REVERSING IN PART

This case comes before the Court on appeal as a matter of right 1 by

Ruben Johnson, the Appellant, from the judgment and sentence of the

Jefferson Circuit Court. Johnson was convicted of first-degree robbery;

complicity to first-degree robbery; first-degree assault; fourth-degree assault;

two counts of first-degree strangulation; third-degree terroristic threatening;

and two counts of intimidating a participant in the legal process. He now

appeals arguing the trial court abused its discretion by admitting evidence of

three prior misdemeanor convictions as rebuttal character evidence and in

admitting the testimonial hearsay statements of a witness; alleging error when

the trial court failed to direct verdicts for both counts of first-degree robbery

and one count of intimidating a participant in the legal process; and alleging

1 Ky. Const. § 110(2)(b). error when the trial court failed to poll the jury. We affirm the trial court on all

counts except that Johnson was entitled to a directed verdict on the count that

resulted in his conviction for complicity to first-degree robbery.

I. Facts There are two incidents involved in this case, one stemming from

December 26, 2019, and the other from January 25, 2020. Johnson was in a

relationship with Cheryl Martin, who had two children. On December 26,

Martin drove Johnson along with her sister, Latasha Martin, and Johnson’s

friend, Theras Pettis, to her apartment. Cheryl had to work and left her two

children with the other three. On her break, she called her sister to check on

the kids. She heard Johnson and Latasha screaming and arguing. Latasha,

Pettis, and Johnson had all been drinking. Cheryl left work to go home.

When she arrived, although the confrontation between Latasha and

Johnson had settled down, Cheryl ordered Johnson and Pettis to leave, and

threatened to call the police. Cheryl took her kids to the store for approximately

one hour to give Johnson time to go. But when she returned Johnson was still

there and had invited other friends to come over. At some point, Cheryl

confronted Johnson with her phone in her hand and Johnson took her phone,

then grabbed Cheryl by the throat and lifted her off the ground. Cheryl could

not breathe, and her vision started to blur. Johnson then dragged Cheryl

outside the apartment and threw her down the hallway stairs. Cheryl was so

dazed by the impact she could not get up. Johnson followed her to continue the

attack, but Latasha intervened and pulled on Johnson’s jacket in an attempt to

2 hold him off. Johnson’s friends, though none were specifically identified,

grabbed at Latasha to stop her. One of these unidentified friends also took her

phone. Johnson proceeded to throw Cheryl down another flight of stairs.

Cheryl’s phone was stomped on and broken, though it was recovered in

the grass outside the apartment building after a phone call was made to it.

Latasha’s phone was never recovered. The two sisters had a neighbor call the

police for them. Johnson’s brother came to pick him and his friend up before

the police arrived. Johnson threatened to kill Cheryl as he was leaving.

When police arrived they offered to take Cheryl to the hospital, but she

did not want to leave her children. She informed the police about the incident

and got an interpersonal protective order (IPO) taken out against Johnson.

Although she tried several times to have the IPO served, it never was. Cheryl

told Johnson about the IPO, but he disregarded it. He continued to visit Cheryl,

and Cheryl testified that she thought it best not to resist Johnson to protect

herself and her children.

From this December incident, an indictment would later issue: two

counts of robbery in the first degree; strangulation in the first degree; two

counts of intimidating a participant in the legal process; two counts of assault

in the fourth degree; and two counts of terroristic threatening in the third

degree.

On January 25, 2020, another attack occurred. It must be noted that

Cheryl admits she has little memory of the night in question. It began with her

driving Johnson to his apartment. While there, some neighbors came to visit.

3 Cheryl made everyone a drink, and subsequently she and Johnson used

cocaine. Johnson’s testimony was that after leaving his apartment, Cheryl and

he took a neighbor to the grocery store. Afterward, he and Cheryl had dinner

and he purchased what he believed was marijuana but was later discovered by

Johnson to be a synthetic copy known as spice. The two then went to Cheryl’s

apartment. At her apartment, the kids were told to go to their room while

Cheryl and Johnson smoked the spice. Johnson’s account of the subsequent

events is that he eventually went to bed, but Cheryl woke him up because she

wanted more cocaine. Johnson admitted to slapping her and then restraining

her from leaving the apartment by grabbing her around the neck, as she was

going to get more cocaine. Johnson also admits Cheryl told him she couldn’t

breathe at which point he released her. Johnson then went to use the

bathroom. When he came out, he saw the apartment door closing. He went

outside the apartment at which point he discovered Cheryl at the bottom of the

flight of stairs. He proceeded to help her back into the apartment, passing a

neighbor, Sheena Pittman.

After getting Cheryl into the apartment, Johnson testified, he got a towel

to clean up her injuries. Eventually, Johnson noticed a police officer shining a

light through the apartment window. Pittman had called the police to report a

domestic dispute. The response time of the police was only a couple minutes.

Body camera footage from one of the officers shows they were let in the

apartment building by Pittman. Police knocked multiple times and announced

who they were. The police noted blood on the stairwell and on the outside of

4 Cheryl’s apartment door. One officer heard moaning from inside her apartment.

While this was occurring, Officer Huber interviewed Pittman. That interview

was captured on his body camera and was played at trial. Pittman told Officer

Huber that when she passed Cheryl and Johnson on the steps, Cheryl reached

out to her. Johnson told Pittman Cheryl fell down the steps, but Pittman told

Officer Huber that Cheryl did not fall, and that she did not think Cheryl was

intoxicated at the time.

The police continued knocking and debated whether to kick down the

door. By the time eight minutes had elapsed since their arrival, Officer Martin-

—promoted to detective by the time of trial—opened a hallway window and

went out onto the balcony to get a view inside the apartment. He relayed what

he saw to his fellow officers. He saw a woman lying on the ground and Johnson

was on top of her. He noted knots on her face, a black eye, and blood. She

appeared to be breathing from her mouth and Officer Martin did not think she

was in a condition to speak. He also saw blood on Johnson’s pants and noted

that Johnson was attempting to move Cheryl out of his view.

Johnson refused to open the door for the police. At first, he told officers

he did not want to open the door because he had been using drugs. He was

told that did not matter as they were concerned about Cheryl and that

emergency services were waiting to check her out. Johnson still refused and

said nobody had called the police. Officer Martin corrected him, but Johnson

still refused to open the door.

5 At this point, fifteen minutes had elapsed since the arrival of the police. A

police sergeant arrived at the scene and was communicating with Johnson

through the window. He had noted Cheryl was lying face down and appeared

unresponsive. Based on his observations, he ordered Officer Huber to kick

down the door. Notably, Johnson began complaining that the police would have

to pay for the door. Johnson was detained, apparently arrested, and taken to a

police vehicle by Officer Huber. Officer Huber testified to telling Johnson to

stop talking, as Johnson would not stop complaining, stating the police had to

pay for the door; that nobody had called them; and that Cheryl had only fallen

down the stairs. Johnson was then taken to the police station.

Cheryl’s injuries at the apartment were noted as her left eye completely

swollen shut; knots on her forehead; bleeding from her nose and mouth; marks

on her neck; and she had urinated on herself. Cheryl’s own testimony was that

she had no memory of the actual attack save for one: that Johnson was holding

her down across his legs, hitting her multiple times on her left side and throat.

At the hospital, Cheryl was treated by Dr. Daniel O’Brien, who has worked in

emergency medical care since 1985. Dr. O’Brien testified that Cheryl would

likely have died without emergency medical aid. He noted her injuries to her

face were a “very violent trauma” resulting in swelling and contusions around

her left eye, left cheek, mouth, jaw, and ear. CT scans of her back and neck

showed significant blood accumulation and a crack in the back of her skull,

which Dr. O’Brien noted is a particularly hard bone to break. Dr. O’Brien also

testified to ligature marks on Cheryl’s neck which, when he was informed she

6 had urinated on herself at the scene, led him to conclude she had been

strangled.

Despite being treated in the hospital, Cheryl’s injuries continued to get

worse for a time. Her throat and larynx swelled to the point that her airway was

closed, and she had to be intubated. In all, she was in the hospital for six days.

Nurse Yazel, who worked for the hospital as the Sexual Assault Forensic

Examiner, performed her examination a day after Cheryl had been admitted.

Her testimony largely corroborated Dr. O’Brien’s. Yazel testified that Cheryl did

have some injuries consistent with a fall, including her injuries on her right

hand, elbow, foot, and knee. She testified, however, that her injuries to her

eyes, lips, and neck were not consistent with a fall. She also stated that the

sheer number of injuries to Cheryl could only have come from multiple

impacts. Dr. O’Brien testified that he would be “very surprised” to see these

kinds of injuries as a result of simply passing out and falling down the stairs.

This incident led to the following charges: criminal attempt murder;

assault in the first degree; strangulation in the first degree; and terroristic

threatening in the third degree.

Both incidents were the subject of one indictment and trial. During trial,

Johnson was cross-examined as to whether he had ever been convicted of three

misdemeanor batteries in Indiana. Body camera footage from Officer Huber was

played which partially showed his interview with Pittman and her statements

made therein. At the conclusion of evidence, Johnson sought directed verdicts

on several charges but particularly the first-degree robbery charge and fourth-

7 degree assault charge related to Latasha Martin from the December 26, 2019,

incident, as well as the first-degree robbery charge and intimidating a

participant in a legal proceeding charge related to Cheryl Martin from the same

day. Finally, after the jury had pronounced its guilty verdict, Johnson was

asked if he desired to poll the jury. He now argues that he did invoke that right

contrary to his counsel’s statements to the trial court that polling was

unnecessary. We address each of these in more detail below.

As to the December 2019 incident, the jury found Johnson guilty of first-

degree robbery for the taking and destruction of Cheryl’s phone; complicity to

first-degree robbery for the taking of Latasha’s phone which was never

recovered; first-degree strangulation; intimidating a witness in a legal process

regarding Cheryl; fourth-degree assault regarding Cheryl; and terroristic

threatening regarding Cheryl. Regarding the January 2020 incident, the jury

found him guilty of first-degree assault and first-degree strangulation. The jury

recommended various lengths of prison for each guilty count, the highest being

twenty years for the first-degree assault, and recommended all sentences run

concurrently for a total of twenty years. The trial court imposed the sentence.

On appeal, Johnson has four arguments. First, that the trial court erred

in allowing the Commonwealth to ask him about his three prior misdemeanor

convictions for battery. This argument is further subdivided into three parts—

that criminal convictions for violent crimes do not rebut character evidence for

generosity; misdemeanor convictions are improper rebuttal evidence under

8 KRE 2 405; and KRE 608 prohibited the Commonwealth from impeaching

Johnson with the misdemeanor convictions. Second, Johnson argues the trial

court erred in denying directed verdicts for both counts of first-degree robbery

and one count of intimidating a witness in a legal proceeding (Latasha). Third,

Johnson’s right to poll the jury was violated. Finally, that the trial court erred

in admitting the body camera footage showing Officer Huber’s interview with

Sheena Pittman, whose statements were testimonial hearsay.

For the following reasons, we conclude the questions regarding the three

misdemeanor convictions was not error. The admittance of Pittman’s hearsay

statements via body camera footage was not a constitutional error and was

harmless error. There was no error in not polling the jury. We affirm the trial

court’s denial of directed verdicts except for the first-degree robbery charge,

which led to the conviction for the lesser-included complicity to first-degree

robbery, regarding Latasha Martin.

II. Analysis

A. No Palpable Error in Discussing Three Misdemeanor Convictions Appellate courts generally review evidentiary rulings for an abuse of

discretion. Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018). When an

objection is not properly preserved the review is for palpable error. Webb v.

Commonwealth, 387 S.W.3d 319, 329 (Ky. 2012). A palpable error is one that

substantially effects the rights of the defendant and “manifest injustice has

2 Kentucky Rules of Evidence.

9 resulted from the error.” RCr 3 9.26. “To discover manifest injustice, a reviewing

court must plumb the depths of the proceeding . . . to determine whether the

defect in the proceeding was shocking or jurisprudentially intolerable.” Martin

v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).

In this case, when the Commonwealth notified the trial court it desired to

ask Johnson about the three misdemeanor convictions to rebut Johnson’s

testimony of being kindhearted, defense counsel only stated “I would object for

the record to that coming in.” There was no argument, no grounds stated, nor

did defense counsel even ask for a ruling. Generic objections like this are

generally disfavored “in fairness to the party offering the evidence and to give

the trial court the opportunity to remedy any errors in the proceedings.”

Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky. 2012). The defendant’s

interest is to have errors avoided or remedied during trial to prevent a

potentially tainted conviction. When objecting to the admission of evidence, the

defendant “must be specific enough to indicate to the trial court and this court

what it is he is objecting to.” Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky.

1971). He must also “insist that the trial court rule on the objection, or else it

is waived.” Id. We conclude the generic objection at trial was insufficient for

preservation, but we will examine the issue under a palpable error review.

During direct examination, Johnson asserted that he was a “kindhearted

person.” On cross-examination the Commonwealth once again asked him to

confirm that he had testified to being a kindhearted person. Johnson affirmed,

3 Kentucky Rules of Criminal Procedure.

10 stating “Yes, I am.” The Commonwealth asked to approach the bench. At the

bench conference the Commonwealth declared that it intended to ask Johnson

about his prior battery convictions out of Indiana to rebut the assertion to

kindheartedness. When questioning resumed, the following colloquy occurred:

Commonwealth: So, you are a kindhearted person?

Johnson: Yes, ma’am.

CW: And yet, you have been convicted of battery or domestic battery three times?

J: I’ve been convicted of it three times?

CW: Two battery convictions and one domestic battery conviction, isn’t that right?

J: Uh, excuse me.

CW: You have been convicted of battery two times and you have been convicted of domestic battery one time out of Indiana, is that correct?

J: Uh, yes.

Johnson first argues that evidence of prior acts of violence in and of

themselves are not proper rebuttal evidence because violence does not rebut

generosity. Citing Vito Corleone from the 1972 film The Godfather, Johnson

argues a violent person can also be generous. Johnson testified he was a

“kindhearted person,” and did illustrate that kindheartedness with the example

of freely giving drugs to fellow drug-users, so in that sense one might argue he

was generous. But the specific words used at trial were “kindhearted” and

generosity is a subset of kindheartedness, not equal to it. Kindhearted is

defined as “having or showing a kind heart; kindly.” I The American College

11 Encyclopedic Dictionary, Kindhearted, 672 (1952). Kindly is defined as

“benevolent disposition or spirit.” Id. Benevolent, finally, is defined as “desiring

to do good for others.” Id. at 114. From these definitions we see that a claim to

be kindhearted is a broad one of general moral character and encompasses

virtually all specific traits of good character. Therefore, to rebut a claim of

kindheartedness, reputation for violence or specific acts of violence is

permissible subject to the Rules of Evidence. As Professor Lawson observes,

“[i]f an accused exercises this initiative [to put character in issue] with proof of

general moral character, there is no obvious reason for disallowing evidence of

a relevant specific trait in rebuttal, for the rebuttal evidence would narrow

rather than broaden the character issue raised by the accused[.]” Robert G.

Lawson, The Kentucky Evidence Law Handbook, (5th ed. 2013) § 2.20(2)(c).

Johnson also argues asking about the three misdemeanor convictions

violated KRE 405 and KRE 608. The Commonwealth responds by ignoring that

argument, and instead asserting the three misdemeanor convictions for battery

are admissible under KRE 404(b). We conclude the controlling rule is curative

admissibility. A correct evidentiary ruling by the trial court will not be reversed

even if made for the wrong reasons. Lopez v. Commonwealth, 459 S.W.3d 867,

875 (Ky. 2015). And we can affirm a trial court for any reason appearing in the

record. Gasaway v. Commonwealth, 671 S.W.3d 298, 311 (Ky. 2023). But it is

worth reiterating that because of the generic objection made at trial, the trial

court never articulated any reason for allowing the three battery convictions to

be discussed.

12 As noted, the claim to be kindhearted is a broad one of general moral

character. Proof of general moral character is allowed by KRE 404(a)(1) if the

defendant initiates. But there are limits to the method by which general moral

character may be proven.

[T]he law does not permit an accused to prove good character by making sweeping statement [sic] about his or her general virtue and morality (“I have never committed a crime in my life,” “I have never been in trouble with the law,” “I am an honest person,” etc.). When an accused (violating this prohibition) makes such statements, he/she puts character for substance in issue and opens the door to rebuttal by the prosecution.

Lawson, supra, at §2.20(2)(d). When a defendant strays beyond the limits,

“specific acts that would not be admissible to prove character may be admitted

into evidence in rebuttal of the claim of personal virtue and high morality.” Id.

at §2.25(3)(c).

Although Prof. Lawson does not frame it in such terms, the rule he

describes is curative admissibility. “[W]hen one party introduces improper

evidence, such ‘opens the door’ for the other party to introduce improper

evidence in rebuttal whose only claim to admission is that it explains or rebuts

the prior inadmissible evidence.” Metcalf v. Commonwealth, 158 S.W.3d 740,

746 (Ky. 2005).

In Stansbury v. Commonwealth, the defendant was on trial for attempted

murder of his fiancée. 454 S.W.3d 293, 296 (Ky. 2015). The Commonwealth

asked the victim about her caring for her pets. Id. at 300. “His [Stansbury’s]

counsel asked Falconer [the fiancée] whether Stansbury had ever fed the pets.”

Id. She responded that he had. The Commonwealth on re-direct then inquired

13 as to how Stansbury treated the pets. She testified about his generally abusive

conduct towards the pets such as beating them. Id. We held that conduct

towards the pets was excludable as inadmissible character evidence, but by

asking whether he had ever fed the pets, Stansbury “opened the door to the

introduction of ‘good’ character evidence, [and] he cannot complain if the

Commonwealth walked through that door and introduced character evidence

not to his liking.” Id. at 301.

Stansbury did not cite to any Rule of Evidence, but the rules do state,

[o]n cross-examination of a character witness, it is proper to inquire if the witness has heard of or knows about relevant specific instances of conduct. However, no specific instance of conduct may be the subject of inquiry under this provision unless the cross- examiner has a factual basis for the subject matter of the inquiry.

KRE 405(b). In Johnson v. Commonwealth, 105 S.W.3d 430, 441-42 (Ky. 2003)

and Commonwealth v. Higgs, 59 S.W.3d 886, 894 (Ky. 2001), we cited to KRE

405(b) as supporting the curative admissibility rule. In Johnson, the Court

stated in dicta that the daughter’s direct testimony that she had never “seen

her dad have any illegal drugs in the house” opened the door for the

Commonwealth to rebut that testimony on cross-examination by asking her if

she knew he had pled guilty to a prior drug offense, despite the trial court

having excluded that evidence prior to trial. Johnson, 105 S.W.3d at 441-42. In

Higgs, the defendant’s father testified on direct that he did not believe his son

was a thief, “which amounted to an opinion of Appellee's good character for

honesty.” Higgs, 59 S.W.3d at 894. “The effect of the information elicited on

cross-examination was that, at least as recently as the summer of 1995, he did

14 believe Appellee was a thief.” Id. The Court resolved the issue specifically on the

grounds of KRE 405(b) and curative admissibility. Id. at 894-95. We also

clarified that “the target of this kind of impeachment evidence is the credibility

of the character witness, not the prior conduct of the defendant.” Id. at 895.

It should be noted, however, that credibility here is not to the

truthfulness per se of the character witness, but rather the basis of the

witness’ testimony. For example, if a witness testifies that a defendant is an

honest person, the Commonwealth may ask whether the witness knew the

defendant had committed specific instances of dishonest acts. If the witness

answers “yes,” then the credibility of his testimony is undermined because it

would seem contrary to an acknowledged fact. If he answers “no,” then the

credibility is undermined because the witness then appears to be uninformed.

See Lawson, supra, at §2.25(4)(a). There is certainly a danger here for the

defendant as specific acts of criminal conduct especially can be prejudicial, and

Prof. Lawson does state KRE 403 would still be a basis for objection, even

under the rule of curative admissibility. Id. But, as the Supreme Court of the

United States noted in its seminal opinion Michelson v. United States, “[t]he

price a defendant must pay for attempting to prove his good name is to throw

open the entire subject which the law has kept closed for his benefit and to

make himself vulnerable where the law otherwise shields him.” 335 U.S. 469,

479 (1948).

KRE 405(b) and curative admissibility should not be conflated. Instead,

the general rule of curative admissibility is that when a party opens the door

15 with inadmissible testimony, the opposing party may rebut that testimony with

inadmissible evidence in kind, Stansbury, 454 S.W.3d at 300; and KRE 405(b)

allows for that rebuttal to include inquiry into specific instances of conduct the

testifying witness “has heard of or knows about” so long as the specific

instances of conduct are relevant and the party inquiring “has a factual basis

for the subject matter of the inquiry.” KRE 405(b).

In this case, Johnson testified to being kindhearted, i.e., having a great

disposition to do good. The prior acts of violence—of which the three

misdemeanor convictions are evidence of—were relevant to rebut that

assertion. The convictions being public record, the Commonwealth obviously

had a factual basis for the inquiry. Accordingly, we find no error in the

Commonwealth asking Johnson on cross-examination if he had been convicted

of three misdemeanor convictions for battery.

B. Admittance of Footage of Pittman’s Statements Not Error As related in Section I, Pittman was a witness to the January incident, or

at least a portion of it, and she was interviewed by Officer Huber when the

police responded to the scene. Part of her statements in the body camera

footage were played at trial. A motion in limine excluding hearsay statements in

body camera footage had been granted by the trial court prior to trial, and an

objection on Confrontation Clause and hearsay grounds was made at trial prior

to the body camera footage being played. The issue is preserved.

16 The dialogue from the body camera footage, as played at trial, 4 is as

follows:

Huber: Let’s slide down here real quick. Do you live here or up there?

Pittman: Up there. H: What did you see? P: Me and my cousin, and her boyfriend are walking down, and she was trying to grab at me. She was beaten up like right here. He said that she fell down the steps, and he kept saying ‘uh, bitch, come on, get up, get up.’ My cousin was like I need to call the police when I was walking out. H: Yeah. P: So, that’s why I called you all. H: Um, ok. P: Um, it sounded, I don’t know. H: So, he said she fell, and did she look like she was intoxicated or anything? P: No. We didn’t hear nothing about it. She didn’t fall down the steps. H: Ok. Alright. Officer Huber testified that his interview with Pittman was to determine if

exigent circumstances existed to enter the apartment.

One thing we must highlight is that the footage from Officer Huber’s body

camera was not played in full at trial. As such, key context was missing. For

example, there was no indication, purely from the body camera footage, when

Officer Huber’s interview with Pittman occurred in the course of the stand-off.

But review of Officer Martin’s body camera footage, which was played at trial

earlier that day, showed the entirety of the stand-off. Comparison of the two

4 In his briefing, Johnson includes the transcript of the entire interview. But,

upon review of the cited portion of the video record in Johnson’s brief, that additional portion of the video was not played at trial. 17 videos demonstrates that Officer Huber’s interview with Pittman occurred in

the first few minutes of the police’s arrival at Cheryl’s apartment door. 5 The

portion of Officer Huber’s body camera footage shown at trial was within the

first two minutes after the police first knocked on the apartment door. It was

less than three minutes after the first knock that Officer Martin called for

Officer Huber to join the four other officers, and that is when Officer Huber’s

interrogation ended.

At this point, the police had only noted blood on the stairwell and on the

outside of the door. They had also heard what they believed to be moans from

inside the apartment, though Officer Huber was not then present. The officers

were intermittently discussing these things and whether exigent circumstances

existed based on the blood and moans emanating from inside the apartment. It

was approximately nine minutes from the first knock that Officer Martin went

outside and was able to look inside the apartment. Based on Officer Martin’s

observations and his contemporaneous statements made in the video, he

believed exigent circumstances existed to “kick that door.” It would be another

six minutes, however, almost fifteen minutes exactly from the time the first

knock was made, before police kicked the door down, and it was only upon the

5 Particularly, the nature of the knocks on the apartment door as heard in

Officer Huber’s footage while interviewing Pittman can be synced up with Officer Martin’s footage. Also, review of Officer Martin’s body camera footage shows Officer Huber, identifiable in both videos by his toboggan, leaving the stairwell immediately outside the apartment, where other officers are also standing, and going to conduct the interrogation of Pittman. Finally, Officer Martin can be heard calling for Officer Huber in both videos which concluded the interrogation. 18 orders of an officer that Officer Martin repeatedly addresses as “sarge” that

Officer Huber kicked the door down.

Both parties center their constitutional arguments on the leading cases

from the Supreme Court of the United States: Crawford v. Washington, 541

U.S. 36 (2004); Davis v. Washington and Hammon v. Indiana, 547 U.S. 813

(2006); and Michigan v. Bryant, 562 U.S. 344 (2011). Also included in the

arguments is our opinion in Rankins v. Commonwealth, 237 S.W.3d 128 (Ky.

2007).

The Supreme Court in Crawford held that pursuant to the Sixth

Amendment’s Confrontation Clause, “[t]estimonial statements of witnesses

absent from trial have been admitted only where the declarant is unavailable,

and only where the defendant has had a prior opportunity to cross-examine.”

Crawford, 541 U.S. at 59. 6 The Supreme Court, however, declined to give a

definition of ‘testimonial’ in that case. Instead, it merely listed certain

circumstances where the testimonial nature of the statements could not be

doubted—"it applies at a minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police interrogations.” Id. at 68.

In Crawford, the prosecution had sought to introduce out-of-court statements

of the defendant’s wife, made during a tape-recorded police interrogation. Id. at

39-40.

6 Johnson has not made any argument in his briefing regarding Pittman’s

availability. We therefore focus solely on the testimonial element. 19 In Davis v. Washington and Hammon v. Indiana, the Supreme Court

stated

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 U.S. at 822. But in Davis, the “interrogation” in that case involved the

questions of a 911 operator and the victim when the victim was calling for

police aid. Id. at 826. As such, the Supreme Court held the statements, though

a result of an interrogation, were non-testimonial because: 1) the victim was

speaking about events as they were happening; 2) the victim was facing an

ongoing emergency and “was plainly a call for help against [a] bona fide

physical threat;” 3) “the elicited statements were necessary to be able to resolve

the present emergency, rather than simply to learn (as in Crawford ) what had

happened in the past;” and 4) the formality of the interview, which might better

be understood as the environment of the interview. 7 Id. at 827. Accordingly, the

Supreme Court held in Davis that the “primary purpose [of the interrogation

and statements] was to enable police assistance to meet an ongoing

emergency.” Id. at 828.

7 I.e., the Supreme Court noted the victim’s “frantic answers were provided over

the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” Id. at 827. In contrast, the witness in Crawford “was responding calmly, at the station house, to a series of questions, with the officer- interrogator taping and making notes of her answers[.]” Id.

20 The statements of the victim in Hammon, however, “were not much

different from the statements we found to be testimonial in Crawford.” Id. at

829.

Both declarants were actively separated from the defendant . . . Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial. Id. at 830. Moreover, no emergency was ongoing when police first arrived and

the victim in fact told the police things were fine. Id. at 829-30.

Particularly relevant to the case at hand though, is that given the law as

elucidated, the Supreme Court felt it necessary to explicitly reject the idea that

“virtually any ‘initial inquiries’ at the crime scene will not be testimonial[.]” Id.

at 832. But the Court noted that particularly in cases of domestic abuse

‘officers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ Hibel [v. Sixth Jud. Dist. Court of Nevada, Humboldt Cnty.], 542 U.S. [177 (2004)], at 186, 124 S.Ct. 2451. Such exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.

Id. at 832. Put simply, under a plain reading of Davis, the initial inquiries of

officers, at least when they respond to domestic disputes, in order to assess the

situation, the threat to themselves, and the threat to the victim, may elicit

statements that sound testimonial but are non-testimonial given the immediate

and primary purpose of assessing the situation and threat levels. It all depends

21 on the surrounding context of the situation in which those initial inquiries and

their answers are made.

In Rankins v. Commonwealth, we summarized our understanding of

Crawford, Davis, and Hammon, thusly:

Where statements recount potentially criminal past events, the declarant is, for Confrontation Clause purposes, acting as a witness against the accused. More simply, statements that tell “what is happening” are nontestimonial, while statements that tell “what happened” are testimonial. Accordingly, the Court held that the present-tense statements by the victim in Davis to the 911 operator were nontestimonial. The statements by the victim to the police officer in Hammon, because they related past events, were testimonial. 237 S.W.3d 128, 131 (Ky. 2007) (internal citations omitted). If understood in a

literal sense, Rankins clearly holds that any statement recounting a past event

is testimonial under Supreme Court precedent. But we acknowledged in

Hartsfield v. Commonwealth, that whether the witness’ statement was made in

the present-tense or recounting a past event was merely one of several factors

the Supreme Court commands to be considered to determine whether a

statement was testimonial. 277 S.W.3d 239, 244 (Ky. 2011). Rankins also held

“it is in the final analysis the declarant's statements, not the interrogator's

questions, that the Confrontation Clause requires us to evaluate.” Rankins, 237

S.W.3d at 131 (quoting Davis, supra, at 822 n.1).

The statements in Rankins quoted above must be clarified as, if taken too

literally and out-of-context, they could be contrary to Supreme Court

precedent. The Supreme Court has affirmed that merely recounting a past

event was not, by itself, enough to make a statement testimonial. Michigan v.

22 Bryant, 562 U.S. 344, 370 (2011). It has also clarified that “Davis requires a

combined inquiry that accounts for both the declarant and the interrogator.”

Id. at 367. While the witness’ statements must pass constitutional muster and

therefore are the focus of the inquiry in that sense, “[o]bjectively ascertaining

the primary purpose of the interrogation by examining the statements and

actions of all participants is also the approach most consistent with our past

holdings.” Id. (emphasis added). We cannot look to the witness’ statements

alone nor can we apply a grammatical test that merely looks to the past-tense

or present-tense of the statements. “[W]hen a court must determine whether

the Confrontation Clause bars the admission of a statement at trial, it should

determine the ‘primary purpose of the interrogation’ by objectively evaluating

the statements and actions of the parties to the encounter, in light of the

circumstances in which the interrogation occurs.” Id. at 370.

In Bryant, the victim was shot and retreated to a gas station. Id. at 349.

He was shot around 3 a.m., but police did not get the emergency call until 3:25

a.m. Id. When police arrived, at least five officers all proceeded to ask the

victim, Covington, what happened, who shot him, and where was he shot. Id.

Covington responded that a man named “Rick” shot him, that he spoke with

him through the back door of Rick’s house, and “explained that when he

turned to leave, he was shot through the door and then drove to the gas

station, where police found him.” Id.

On its face, these questions and the answers recounted a past event,

where it occurred, and who was involved. The interrogation took place

23 approximately twenty-five minutes after the shooting occurred. But because

these questions were meant to address an ongoing emergency, the primary

purpose of the interrogation was not to solicit information relevant for use in a

later prosecution but to address that ongoing emergency. Id. at 375.

The Supreme Court would later again reaffirm that the touchstone of the

inquiry is the primary purpose of the interrogation based on the context in

which the interrogation occurred—"under our precedents, a statement cannot

fall within the Confrontation Clause unless its primary purpose was

testimonial. ‘Where no such primary purpose exists, the admissibility of a

statement is the concern of state and federal rules of evidence, not the

Confrontation Clause.’” Ohio v. Clark, 576 U.S. 237, 245-46 (2015) (quoting

Bryant, supra, at 359). “[T]he primary purpose test is a necessary, but not

always sufficient, condition for the exclusion of out-of-court statements under

the Confrontation Clause.” Id. at 246. A statement is only testimonial when it

has the “primary purpose of creating an out-of-court substitute for trial

testimony.” Id. at 250-51 (quoting Bryant, supra, at 358).

Bryant similarly made clear that

The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation.

562 U.S. at 370. “[T]he scope of an emergency in terms of its threat to

individuals other than the initial assailant and victim will often depend on the

24 type of dispute involved.” Id. at 372. The Supreme Court noted in that case that

nothing Covington told the police indicated he was shot because of a private

dispute or that the threat from the shooter had ended. Id. Therefore, the

victim’s statements in Bryant expanded the scope of the emergency potentially

to the police and the public. Id. at 373. Courts must not construe an

“emergency to last only precisely as long as the violent act itself . . . .” Id.

But “the existence vel non of an ongoing emergency is not the touchstone

of the testimonial inquiry[.]” Id. at 374. Courts must still evaluate whether the

primary purpose of the interrogation was to meet the ongoing emergency. Id.

That inquiry, however, is “informed by the circumstances of the ongoing

emergency . . . .” Id. At this point, Ohio v. Clark is instructive. In sharp contrast

to a shooting victim in downtown Detroit, as in Bryant, the Supreme Court

found an ongoing emergency existed involving a three-year old child, a day

after his injuries occurred. Clark, 576 U.S. at 246. The child had gone to school

with visible injuries on his face alerting his teachers, who asked him what

happened and who did this. Id. at 241. The Supreme Court held the teachers’

questions were prompted by “the immediate concern . . . to protect a vulnerable

child who needed help.” Id. at 247. “L.P.'s teachers were not sure who had

abused him or how best to secure his safety. Nor were they sure whether any

other children might be at risk. As a result, their questions and L.P.'s answers

were primarily aimed at identifying and ending the threat.” Id. The Supreme

Court also rejected testing the testimonial nature of statements by whether

25 they had a natural tendency to lead to prosecution, declaring that “irrelevant.”

Id. at 250.

The statements at issue in Davis and Bryant supported the defendants' convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those cases that the Confrontation Clause did not prohibit introduction of the statements because they were not primarily intended to be testimonial.

Id.

After this lengthy survey, we now turn to an analysis of the facts before

us. Pittman called police for a domestic dispute. Police responded

approximately two minutes thereafter to the scene. Officer Huber was one of

the responding officers. His interrogation with Pittman occurred within the first

two minutes of him and his fellow officers arriving at the door of Martin’s

apartment. Blood was plainly visible on the stairs immediately outside her

apartment. Officer Huber conducted his interrogation a flight below those

stairs, with his fellow officers clearly and repeatedly knocking on the door.

From this immediate context, the officers, including Huber, had not determined

an ongoing emergency existed. Instead, they were confronted with whether an

ongoing emergency existed in the first place. They had not come into contact

with Martin, so they had not determined the status of the victim; indeed, they

had not determined if there was a “victim” even in existence.

The circumstance of this interrogation is not readily analogous to any of

those found in Crawford, Davis, Hammon, Bryant, or Clark. But the informality

of the scene where the interrogation happened—a flight below an apartment

where there is potentially an ongoing emergency, police are repeatedly 26 knocking on the door, sometimes quite aggressively—does not lend itself to a

conclusion tending towards testimonial. “[T]he circumstances lacked any

formality that would have alerted [Pittman] to or focused [her] on the possible

future prosecutorial use of [her] statements.” Bryant, 562 U.S. at 377.

Officer Huber asked Pittman, “What did you see?” And Pittman’s

statements were a recounting of a past event; that Martin “was trying to grab at

me. She was beaten up like right here. He said that she fell down the steps and

he kept saying, uh, ‘bitch, come on, get up, get up.’” Officer Huber then asked,

“So, he said she fell, and did she look like she was intoxicated or anything?”

This question was prompted by the inherent conflict in Pittman’s statement—

whether Martin fell or was “beaten up.” This obviously went to the very

dilemma presented to the police at that moment: did an ongoing emergency

exist. At this time, without having established any kind of contact with Martin,

the police were confronted with a situation in which a person could potentially

be somewhat hurt but not in any kind of emergency; or potentially that a

victim could be inside the apartment, possibly even with her assailant (as no

contact with Johnson had been established at this time either), and subject to

continuing attacks.

Pittman’s response to Officer Huber’s second question was “No. We didn’t

hear nothing about it. She didn’t fall down the steps.” This statement, in and of

itself, certainly sounds testimonial. But the overall context counsels against

that conclusion. Bryant commands that we evaluate the motives, often mixed

motives, of victims and witnesses when making statements to the police.

27 Bryant, 562 U.S. at 368. Conceivably, Pittman could have understood that this

statement could be used in a later prosecution, but the immediate context and

the primary motivation at the moment the statement was given, was to give

information to the police so they could determine what kind of situation they

were dealing with. We also look to the motives of the police officer in asking his

questions. Id. As made plain above, the police were at that time in a situation

in which several key facts were not known, all of which governed their potential

actions. If Martin had only fallen but was not seriously injured, then there

would be no exigent circumstances to enter the apartment. If Martin had fallen

but was severely injured, would that be enough to satisfy exigent

circumstances? If she had been attacked, was she safe inside the apartment?

Who was her attacker? Where was he? The only thing police knew for sure was

that there was a potential victim of domestic violence, as demonstrated by the

domestic dispute call and blood on the stairs, and her safety was the

immediate question. Officer Huber was not at the time of interrogation

primarily seeking to gather evidence for later prosecution but was making an

initial inquiry at the scene of a possible crime, which possibly presented an

ongoing emergency. Davis, 547 U.S. at 832. We conclude that the primary

purpose of Pittman’s statements was to help police determine whether an

ongoing emergency existed and therefore are non-testimonial.

Even if we included the full interview, despite it not being shown at trial,

our conclusion would not change. After Officer Huber stated “Ok. Alright.” a

pause of fifteen seconds occurred. Officer Huber stopped asking questions and

28 Pittman stopped talking; she even turned her body away from Officer Huber

and started looking back up the stairs. Pittman then started talking to Officer

Huber again, unprompted by him, but what she said is inaudible. The following

occurred:

Huber: So, she was . . . was she conscious when she went in there?

Pittman: She was laying like this here.

H: So, he drugged her in?

P: Yeah, I was only a couple of steps from my apartment, and they were right here at the bottom, and as I walked him out, and she was trying to grab . . . I guess, his hand, it was like she [inaudible].

H: She was trying to grab somebody’s hand, ok.

P: Hm-mm.

At this point the interrogation concluded as Officer Martin called Officer Huber

back to the apartment door. Officer Huber asked Pittman if Cheryl Martin had

been conscious, which obviously goes to her medical state and safety.

Pittman’s descriptions of the event, and her recounting that Martin was trying

to grab somebody’s hand, was to describe Martin’s physical actions to show

she was indeed conscious and responsive at the time. The primary purpose of

this second exchange was still relevant to whether or not an ongoing

emergency existed; however, the primary purpose of this second exchange

could also be more specifically described as ascertaining the medical state of

Martin. In either case, the statements would be non-testimonial because their

primary purpose was not for “creating an out-of-court substitute for trial

testimony.” Bryant, 562 U.S. at 358; Clark, 576 U.S. at 250-51.

29 Johnson argues that Pittman’s answers did not provide information to

officers for “immediately end[ing] a threatening situation behind an apartment’s

closed door.” He also argues that the emergency should be confined to within

Martin’s apartment. “A locked door separated her apartment from the stairwell,

thus there was no emergency in the stairwell where Pittman met Huber.” As for

the first argument, its error is in attributing subsequent facts to an earlier

period in time. It is true that the police did not kick down the door until they

had established a line of sight upon Martin inside the apartment, and that it

was her medical condition that ultimately controlled their decision to forcibly

enter their apartment. But it does not follow that because the police did not

conclude exigent circumstances existed to kick down the door immediately

after Officer Huber interrogated Pittman, that such interrogation must have

had as its primary purpose creation of an out-of-court substitute for trial

testimony. That is a pure non-sequitur. As we concluded, Pittman’s statements

had as their primary purpose to aid the police in determining whether there

was an ongoing emergency. The fact that police could not or did not reach that

conclusion after receiving her statements does not negate that purpose.

As to the second argument, it may be true enough that the actual

emergency existed within the apartment and Pittman could not describe what

was going on behind a closed door. But the events in the stairwell were

obviously relevant in helping the police resolve the exact question of whether

there was an ongoing emergency within the apartment. Officer Huber’s

questions were initial inquiries to assess the situation and determine the threat

30 to and safety of Martin. Pittman’s primary purpose in giving her answers were

to aid those determinations. The fact that Pittman was not in an ongoing

emergency herself does not negate that. Indeed, in Hartsfield, we held that a

statement was not testimonial, in part, because it was “in the nature of seeking

help for an emergency (even though it was not ongoing).” Hartsfield, 277

S.W.3d at 245. Pittman was seeking help on behalf of Martin.

Having determined that the statements do not present a constitutional

issue, we must still determine whether they were admissible under hearsay

exceptions. KRE 803. We will not belabor this point, in an already lengthy

opinion. We assume without deciding that Johnson is correct that the

statements do not fall within a hearsay exception and proceed to a harmless

error analysis. RCr 9.24. “The test for harmlessness is whether the error

substantially swayed the verdict.” Allen v. Commonwealth, 395 S.W.3d 451,

467 (Ky. 2013). If the error had substantial influence “or if one is left in grave

doubt, the conviction cannot stand.” Id. (internal quotation omitted).

Johnson contends that but for Pittman’s statements in the video there

was no other witnesses the Commonwealth had to discredit his account that

Martin fell down the stairs. To the contrary, the testimony of Dr. O’Brien and

Nurse Yazel recounted the numerous and significant injuries to Martin, as well

as their conclusion that she did not suffer these injuries, or at least a portion of

them, from a fall. The unrefuted medical testimony in this case supported the

jury’s conclusion that Johnson had acted wantonly toward Martin and

31 supported the conviction for assault in the first-degree. Pittman’s statements

were not substantially influential upon the jury, nor do we have grave doubts.

C. No Error in Not Polling Jury Johnson argues he was denied his right to have the jury polled. When

the trial court asked if Johnson wished to poll the jury, Johnson and his

counsel began an inaudible discussion between them. Finally, counsel replied,

“No, your honor, I don’t think that is necessary.” Johnson immediately

interrupted and said, “No. Yes, yes, yes.” Counsel asked him, “You do?” At

which point, Johnson asserted, “I’m trying to figure out what is going on.” More

inaudible discussion occurred until Johnson, clearly somewhat perturbed,

audibly stated,

Oh, the verdicts? It just went on. Are you serious? So, no, have we agreed on. No. We agreed on not using hearsay at the beginning of this trial and hearsay was used. It was shown on that DVD. And you, the prosecutor, and the judge agreed on that. What does that mean? A mistrial? It wasn’t planned fair or what? While making this statement, the video record shows Johnson addressing the

Commonwealth’s Attorney; it was not a discussion with his counsel. Afterward,

the trial court simply said “Okay.” And Johnson’s counsel again stated, “I don’t

think polling’s necessary, your honor.”

The right to poll the jury is not explicit in our constitution. Instead, it is

grounded in the right of the accused, with counsel, to be present at all stages

of the trial. Ky. Const. § 11; Temple v. Commonwealth, 77 Ky. 769, 771 (1879).

The Defendant

has a right not only to see and know that the whole jury is present assenting to the verdict, but by polling to demand face to face of

32 each juror whether the verdict is his verdict, and to object to it unless each member of the jury shall answer for himself that the verdict is his. Temple, 77 Ky. at 771. On the other hand, Section 11 does not make it necessary under all circumstances for the accused to be present at every stage of the trial. All that it does is to guarantee his right to be present if he so desires. This court has held in a number of cases that the privileges guaranteed by this section are personal to the accused and may be waived. Boering v. Beard, 10 S.W.2d 447, 450 (Ky. 1928). Thus, the failure to poll the

jury when requested and preserved is reversible error. Id. at 447. But absence

does not void the judgment. Id. at 451. It is also important to note that there is

no rule requiring trial courts to automatically poll the jury; it is only required

when requested by a party. RCr 9.88.

In Temple, the conviction was reversed when the jury verdict was

received by the trial court in absence of both the defendant and his counsel.

Temple, 77 Ky. at 770. In Powell v. Commonwealth, the conviction was reversed

when the verdict was received with the defendant present but not his counsel.

346 S.W.2d 731, 733 (Ky. 1961). In that case, the Court assumed that the

defendant did not know he had a right to poll the jury. Id. And that assumption

provides a necessary caveat to the Court’s statement that though polling the

jury may be waived, “in such a case the waiver should be so clear and

unequivocal as to indicate a conscious intent.” Id. at 734. In other words,

because the defendant was assumed to not know he had a right to poll the

jury, the failure of the defendant to assert that right, in absence of his counsel,

could not be considered waiver. This is in contrast to Asher v. Commonwealth,

where without any mention of absence of either the Defendant or his counsel,

33 the Court held that because “the record fails to show that he made any request

for a poll of the jury . . . it follows that the appellant by failing to make such a

request waived his right to such a poll.” 299 S.W. 568, 568 (Ky. 1927).

In this case, Johnson and counsel were present. The issue is whether

Johnson, distinct from his attorney, asserted his right to poll the jury such

that the failure to do so by the trial court was reversible error. “In the absence

of exceptional circumstances, a defendant is bound by the trial strategy

adopted by his counsel.” Breazeale v. Commonwealth, 600 S.W.3d 682, 694

(Ky. 2020) (quoting Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App.

1977)). Johnson’s counsel twice gave an unequivocal answer that polling was

unnecessary. Johnson, as clear from the record, was not sure what exactly was

being asked by the trial court. He queried “What just happened?” and then

declared “I’m trying to figure out what is going on.” Then he began to address

the Commonwealth’s Attorney specifically—not his counsel nor the trial court—

about hearsay evidence and the body camera footage addressed earlier in this

opinion. Although Johnson did declare “Yes, yes, yes,” it is clear from the entire

context that Johnson was attempting to argue substantive issues regarding the

admission of hearsay evidence, and not that he wanted the trial court to ensure

each individual juror’s assent to the verdict. Under these circumstances, we

cannot say that Johnson asserted his right to poll the jury. Nor do we think

this provides an “exceptional circumstance” that Johnson should not be bound

by the two waivers of the right by his counsel. Therefore, we hold there was no

error.

34 D. Directed Verdict for First-degree Robbery (Latasha Martin) should have been Granted, but otherwise Trial Court is Affirmed Johnson argues he should have been granted a direct verdict as to the

first-degree robbery charge relating to Latasha Martin because the trial court

had granted a directed verdict for the fourth-degree assault charge against him

relating to Latasha Martin, both stemming from the same events. Because the

trial court specifically concluded there was no evidence Latasha Martin was

physically injured as required by the fourth-degree assault statute, KRS

503.080(1)(a), Johnson argues he could not simultaneously be guilty of first-

degree robbery or complicity thereto, which also requires a physical injury, if

there has not been a dangerous weapon or dangerous instrument used. KRS

515.020(1)(a). He also argues that he should have been granted a directed

verdict on the first-degree robbery charge relating to Cheryl Martin and

intimidating a witness in a legal proceeding related to Cheryl Martin.

The legal standards for a directed verdict motion are clear: “[i]f under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.” Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977). “The trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion, and a directed verdict should not be given unless the evidence is insufficient to sustain a conviction. The evidence presented must be accepted as true. The credibility and the weight to be given the testimony are questions for the jury exclusively.” Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). The standard for appellate review is equally clear: “[o]n appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Eversole v. Commonwealth, 609 S.W.3d 209, 217-18 (Ky. 2020).

35 As to Johnson’s first argument, we agree. Under the facts of this case,

the fourth-degree assault against Latasha required a physical injury with

intentional or wanton state of mind. KRS 508.030(1)(a). The only evidence

supporting the physical injury of Latasha was Cheryl’s testimony that

Johnson’s friends jumped Latasha and hit her, but Cheryl explicitly stated she

did not see that happen. Fourth-degree assault is a lesser-included offense to

first-degree robbery. Mack v. Commonwealth, 136 S.W.3d 434, 439-40 (Ky.

2004). The principal difference between the two is that first-degree robbery

requires an additional element of “in the course of committing theft . . . .” Id. at

439; KRS 515.020(1). Because the trial court dismissed the fourth-degree

assault charge for the failure of proof regarding physical injury—an element

shared by both charges—Johnson is correct in his assertion that there was

equally a failure of proof on the physical injury for the first-degree robbery

charge.

In Campbell v. Commonwealth, this Court held

the defendant is entitled to a complete acquittal i. e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses. 564 S.W.2d 528, 530 (Ky. 1978), overruled on other grounds by Ray v.

Commonwealth, 611 S.W.3d 250, 265 (Ky. 2020) (emphasis added). If there is a

failure of proof for an element of the greater-offense that is shared by the

lesser-included offense, then a directed verdict on the greater-offense on the

basis of that failure of proof extends down to the lesser-included offenses as

36 well. We see no reason why it should not also extend upward. If the

Commonwealth has failed to prove an element of a lesser-included offense that

is shared by the greater offense, it is illogical to grant a directed verdict upon

the lesser-included offense but not also the greater-offense. Here the trial court

found insufficient proof for physical injury regarding fourth-degree assault. It

stated, “We need more . . . We just don’t have anything about physical injury

here.” There could not at the same time be sufficient proof for physical injury

under first-degree robbery since both charges stemmed from the same alleged

event—the “jumping” of Latasha by Johnson’s friends—and the same

testimony. Therefore, the trial court should have granted a directed verdict as

to the first-degree robbery regarding Latasha Martin. Johnson’s conviction for

complicity to first-degree robbery against Latasha Martin is reversed.

As to the second and third arguments, however, we disagree. As to the

first-degree robbery related to Cheryl Martin, Johnson argues that he did not

intend to deprive her of her property when he took her phone, citing Hall v.

Commonwealth, 551 S.W.3d 7 (Ky. 2018). Johnson argues that here “the

evidence shows he lacked intent to permanently deprive Ms. Martin of her

cellphone or dispose of it where she could never find it. Absent the intent to

deprive her of the cellphone, there is no theft, and thus no robbery.”

We recognize that first-degree robbery incorporates the elements of theft

by unlawful taking. Lloyd v. Commonwealth, 324 S.W.3d 384, 390 (Ky. 2010).

Therefore, Hall is instructive but not controlling. In that case, we held, under

KRS 514.030, the theft by unlawful taking statute, “that no reasonable juror

37 would think that a defendant who uses a police cruiser to flee from police, then

abandons it in the middle of the road with the police in hot pursuit, intends

that the property not be restored to the police.” Hall, 551 S.W.3d at 15. In other

words, there was no intent to deprive, under the statutory definition of that

word. Id. at 12-14. Hall held that one definition of deprive was “withhold

property of another permanently.” Id. at 13; KRS 514.010(1)(a). It then provided

a definition of that phrase as “the property never be restored to its rightful

owner.” Id. One can withhold property without maintaining actual possession

of it, and one can even abandon the property and still be withholding it. Id. The

reason Hall is not controlling is because that case did not deal with the

destruction of the property after it was stolen. That Johnson took Martin’s

phone is not disputed; the dispossession of property is conceded. The phone

was recovered, broken and “split in half” according to Martin, outside the

apartment building. It was able to receive a phone call, but Martin testified the

phone only rang once and she had to replace it. Johnson argues that this does

not constitute intent to permanently deprive Martin of her phone because he

merely “discarded” it in an easily recoverable location outside the apartment

building and that the phone still worked.

Although Lloyd recognized the elements of theft by unlawful taking are

incorporated into first-degree robbery, it is not clear that there is a strict 1:1

incorporation. First, KRS 515.020 does not require a completed theft, only an

attempt—“we view the first-degree robbery provision as a deterrent to

assaulting an individual . . . with the intention of unlawfully obtaining his

38 property whether any of that property is actually taken or not.” Lamb v.

Commonwealth, 599 S.W.2d 462, 464 (Ky. 1979). Second, Lamb also recognizes

the General Assembly’s intent of the first-degree robbery statute was to

emphasize the crime upon the person and de-emphasize the crime to property.

Id. at 463. In contrast, theft by unlawful taking only focuses on the property. In

Lamb, the defendant did not gain possession of any property at all, but he tried

to do so at knifepoint. Id. at 462. Thus, it is not clear that the subsequent

actions Johnson took with the phone are relevant. The phone being taken,

accompanied by a physical injury by Johnson upon Martin by his use of

physical force, strikes us as a textbook example of first-degree robbery.

But we need not solve this riddle to reach a resolution. Considering

Johnson’s subsequent actions with the phone—his destruction of it such that

it was “split in half,” it was only able to ring once afterward, and the necessity

to replace it by Martin—surely constitutes a deprivation of her property. A cell

phone that cannot function is only barely distinguishable from a paperweight,

and obviously has no utility and little, if any, value. The taking of property and

its subsequent destruction so that it can no longer function as normal

constitutes an act of withholding property of another permanently. The act of

destruction is the means by which the withholding is accomplished, much like

Hall recognized an act of abandonment can also be the means of withholding

property. Hall, 551 S.W.3d at 13. Martin’s recovery of the physical device itself

does nothing for Johnson, first, because to give that factor any weight would be

contrary to the legislative intent behind KRS 515.020 to de-emphasize the

39 crime to property. Lamb, 599 S.W.2d at 463. And secondly, because KRS

515.020 does not require an accomplished theft. Id. Imperfect destruction of

the phone qualifies as an incomplete withholding of property of another.

Because the intention to do a criminal act “can be inferred from facts and

circumstances[,]” Hall, 551 S.W.3d at 13, it was not unreasonable for the jury

to find guilt for first-degree robbery under the evidence as a whole.

Johnson also argues that he took the phone prior to any physical force

upon Martin, or in other words, that the theft was accomplished prior to the

physical force and physical injury. The law does not require a chronological

priority of physical force, physical injury, then theft. So long as the physical

force is used “in the course of committing theft . . .” and there was an “intent to

accomplish the theft . . . ,” KRS 515.020(1), then whether or not a theft is even

accomplished, so long as it is attempted, and physical injury to a person not a

participant in the crime results, then one is guilty of first-degree robbery.

Martin’s testimony establishes that the physical force and injury occurred

immediately after the theft; she did not imply any significant break in time

between the theft and the physical injury. She said, “He drug from me from my

front room to my kitchen after snatching my phone out of my hand. And held

me up on the wall, and then drug me to the hallway and threw me down a

flight of steps.” We therefore cannot say as a matter of law that Johnson’s

infliction of physical injury upon Martin was not in the course of committing

theft, and therefore it was not unreasonable for a jury to find guilt for first-

degree robbery under the evidence as a whole.

40 Finally—as to the directed verdict for intimidating a participant in the

legal process related to Cheryl Martin, citing Edmonds v. Commonwealth, 433

S.W.3d 309, 321 (Ky. 2014)—Johnson argues the law requires some prior

crime had to have occurred prior to the intimidation, or threat, which he

argues did not happen here. Instead, because he took Martin’s phone prior to

assaulting her, and the assault itself was part of the intimidation, there is a

failure of proof requiring a directed verdict. But Cheryl testified that prior to

Johnson taking her phone she had ordered him and his friends to leave her

apartment and had threatened to call the police. When she came back to the

apartment after giving Johnson time to leave, he was still there, and apparently

inviting additional friends over. It was then after one of those friends arrived

that he took Martin’s phone and assaulted her. Martin testified that she

believed Johnson had taken her phone to prevent her from calling the police. A

criminal trespass, a Class A misdemeanor, occurs when a person “knowingly

enters or remains unlawfully in a dwelling.” KRS 511.060(1). Johnson was not

a co-tenant with Martin. When Martin told him that he needed to leave her

apartment, that constituted a revocation of his privilege to be in her dwelling.

Under KRS 524.020, “if the legal process could be invoked, and a

defendant intends to prevent a victim from participating in the legal process,

then this statute can apply.” Edmonds, 433 S.W.3d at 319. If Johnson meant

to “intentionally hinder or delay” Martin “from reporting the crime he

committed that could legally result in criminal charges being brought against

him[,]” then he has intimidated a participant in the legal process. Id. at 321.

41 Here Martin’s testimony supported the conclusion that Johnson had

committed a crime, criminal trespass, and that she had threatened to call the

police to effectuate his removal. A jury could then reasonably infer that

Johnson knew the legal process could be invoked against him, and that when

he took the phone from her hand and assaulted her, he was attempting to

hinder or delay Martin from contacting the police. Finally, our decision in

Edmonds expressly overruled Moreland v. Commonwealth, 322 S.W.3d 66 (Ky.

2010). Id. at 319. Therefore, under Edmonds, threats to kill a victim qualify as

intimidating a participant in the legal process. Id. at 318. Martin testified that

Johnson threatened to kill her as he was leaving her apartment. It was not

unreasonable for the jury to find guilt for intimidating a participant in the legal

process related to Martin under the evidence as a whole.

III. Conclusion For the aforementioned reasons, we affirm Johnson’s convictions save for

the complicity to first-degree robbery conviction related to Latasha Martin. We

remand to Jefferson Circuit Court to amend the judgment and sentence

accordingly. We additionally note, although Johnson has not argued it on

appeal, that because he was convicted of first-degree robbery and fourth-degree

assault against Cheryl Martin from the December 26, 2019, incident, that the

latter charge is a lesser-included offense to the former. Mack, 136 S.W.3d at

439-40. This a double jeopardy violation which requires vacatur of the lesser

offense. Sevier v. Commonwealth, 434 S.W.3d 443, 453 (Ky. 2014). The record

shows the jury found him guilty of both counts but we cannot find a

42 concomitant instruction for fourth-degree assault in the penalty phase

instructions to the jury. Nonetheless, the trial court sentenced him to twelve

months in prison for that count, to be served concurrently with the rest.

Because there was a conviction and sentence for both the first-degree robbery

and fourth-degree assault against Cheryl Martin on December 26, 2019, we

vacate that fourth-degree assault conviction. The trial court upon remand is

instructed to amend its judgment and sentence accordingly.

All sitting. VanMeter, C.J.; Bisig, Keller, Lambert, and Nickell, JJ.,

concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Christopher B. Thurman Assistant Appellant Advocate Lousiville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Jeffrey Allan Cross Assistant Solicitor General