RENDERED: FEBRUARY 9, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1387-MR
TARA K. THOMAS APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOE W. HENDRICKS, JR., SPECIAL JUDGE ACTION NO. 21-CR-01268
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, KAREM, AND TAYLOR, JUDGES.
EASTON, JUDGE: The Appellant, Tara K. Thomas (“Thomas”), seeks reversal of
the final judgment of the Warren Circuit Court after a jury convicted her of
Retaliating Against a Participant in the Legal Process. Thomas contends the circuit
court erred in admitting too much evidence for the Commonwealth, including
misuse of KRE1 404(b), as contrasted with too little evidence allowed for her,
1 Kentucky Rules of Evidence. depriving Thomas of the opportunity to present a complete defense. Thomas also
believes the circuit court erred by amending the Indictment after the close of the
evidence with a consistent instruction to the jury and failing to give an instruction
for Harassing Communications as a lesser-included offense. Evaluation of this
record reveals no error by the circuit court. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because of events alleged to have occurred on October 7, 2020,
Thomas was charged with two counts each of Third-Degree Assault (of police
officers) and Third-Degree Terroristic Threatening, with additional counts of
Alcohol Intoxication, Resisting Arrest, and Harassment.2 Because of Thomas’ lack
of any disqualifying criminal record, the Commonwealth offered a felony pretrial
diversion to Thomas on September 20, 2021. Assistant Commonwealth Attorney,
Kori Beck Bumgarner (“Bumgarner”), communicated this offer to Thomas’
attorney.
2 Warren District Court Case No. 20-F-01090. Because we seek to present a complete picture for both sides of this case, we will refer to court records of cases referred to by the parties during the case. Judicial notice may not be taken of Kentucky CourtNet records to present as evidence in a trial. See Marchese v. Aebersold, 530 S.W.3d 441 (Ky. 2017). But information about the existence of charges may be referenced by an appellate court to provide perspective for the trial court proceedings. See, e.g., Mulazim v. Commonwealth, 600 S.W.3d 183, 203 n.6 (Ky. 2020). After the trial in this case, Thomas pled guilty to amended misdemeanor charges in Case No. 20- F-01090, which had by then resulted in an Indictment filed as Warren Circuit Court Case No. 21- CR-01096.
-2- The diversion offer included a requirement to serve some time as an
alternate sentence. Thomas reacted badly to this offer. On the night of September
20-21, 2021, Thomas sent a series of messages to Bumgarner, her husband, and her
stepfather. In summary, these messages included vulgar language and declared
death to Bumgarner and her two small children. Thomas was indicted on
November 17, 2021.
There were delays in this case because of the identity of the victim. A
special judge and a special prosecutor from other counties were appointed.
Thomas’ retained attorney withdrew because of a “breakdown of trust” according
to Thomas. It then took more time to appoint public defenders from another office.
This was needed because local public defenders worked frequently with
Bumgarner.
The delays led to more time in pretrial custody for Thomas. Thomas
was out on a bond for this case, but this bond was eventually revoked due to a
confirmed positive drug test (methamphetamine). The special prosecutor also
reported that he and his wife had received attempts at communication from
Thomas, although this was not confirmed with evidence in the record. Thomas
denied this. Even with the delays, the circuit court acceded to Thomas’ demand
that the case be tried promptly, despite the concerns of her appointed counsel.
-3- The circuit court conducted a pretrial conference on July 29, 2022. At
this pretrial conference, KRE 404(b) issues were addressed. The first day of the
trial was used to select a jury. The rest of the trial took place on August 3, 2022.
During the trial, the circuit court allowed Bumgarner’s husband and stepfather to
testify about the messages they had received, which were reported to Bumgarner.
Emotional testimony described Bumgarner’s reactions to the threats on the day
they were received.
Thomas’ defense focused on her intent. She sought to prove that she
was expressing frustration with the justice system, not actual threats of harm. With
each witness, her counsel pointed out that the messages contained no actual
specific threat of how harm would come to Bumgarner. No witness called 911.
Thomas lived an hour away. Additionally, Thomas wanted to call her mother as a
witness to present evidence of Thomas’ frustration. After a discussion among
counsel and the circuit court for over ten minutes, Thomas decided not to call any
witnesses.
At the conclusion of the evidence, the circuit court instructed the jury
with respect to threats not just about Bumgarner but also about her children,
although the Indictment referred only to Bumgarner by name. The jury convicted
Thomas and fixed her sentence at four years. The circuit court imposed this
-4- sentence, denying probation. The circuit court denied a new trial motion. We will
develop more details of the case as we address the appeal contentions.
STANDARD OF REVIEW
The circuit court’s evidentiary rulings are reviewed for abuse of
discretion. Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004). “The test
for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.” Id. We review
legal questions de novo. We must determine whether the circuit court committed
error in the amendment of the Indictment or in its jury instructions, including
whether to instruct on a lesser included offense. See Fields v. Commonwealth, 219
S.W.3d 742 (Ky. 2007) (a case involving both issues).
ANALYSIS
We will review the evidentiary issues first as they will provide context
for the other decisions made by the circuit court. Thomas argues the presentation
of messages sent to Bumgarner’s husband and stepfather violated KRE 404. She
also insists the evidence about Bumgarner’s reaction to the messages was improper
for the first phase of the trial and should have been limited to the sentencing phase
as victim impact evidence. We start with the KRE 404 issues.
KRE 404(b) is often imprecisely referred to as a rule governing “prior
bad acts.” The acts offered as evidence can be contemporaneous or even after the
-5- events at issue so long as they are offered and considered only for a proper purpose
other than the character of the actor. In this case, the evidence about the messages
served an important purpose other than an attack on Thomas’ character.
Retaliation Against a Participant in the Legal Process occurs when
someone “threatens to engage in conduct causing or intended to cause bodily
injury[3] . . . [to] a participant in the legal process.” KRS4 524.055(1). As it
pertains to this case, other elements are that the threat related to Bumgarner for
performing her duty as a prosecutor. KRS 524.055(1)(d), (3). These other
elements were not disputed. The question was whether a threat was intended.
Just as Thomas wanted to focus on the lack of a specific physical
harm threatened, the lack of any 911 call, and her physical distance from
Bumgarner, the Commonwealth needed to prove that this was a true threat. If the
threat was not a true threat, the communication to a government official would be
protected by the First Amendment right to express opposition or frustration. See
Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
Under KRE 404(b), evidence of Thomas’ messages to three people
was relevant to her motive and intent and how real the threat was. KRS 524.055
3 Of course, death is the ultimate bodily injury regardless of how it may be inflicted. 4 Kentucky Revised Statutes.
-6- does not actually require direct communication5 of the threat to the victim. The
fact that Thomas sent messages to people close to Bumgarner is relevant evidence
of her intent to make sure Bumgarner found out about the threat.
The contemporaneous reactions by Bumgarner and the other
recipients of the messages were evidence inextricably intertwined with the events
of that day. The reactions were evidence of whether the threats were real and to
rebut any claim by Thomas of her mistaken intention to just express frustration.
When the circuit court considered the probative value of the evidence, it correctly
concluded that the probative value was not substantially outweighed by the danger
of unfair prejudice. KRE 403.
On the other side, Thomas wanted to introduce evidence of her level
of frustration with the justice system and the Warren County Commonwealth
Attorney. Thomas introduced evidence of comments made around the same time
expressing her constitutionally protected criticism of the Commonwealth Attorney
as it related to a case in which Thomas was the victim of a sexual offense. This
more recent case added to Thomas’ bad court experience when she was the victim
of sex crimes at the hands of a neighbor when she was 12 years old.
5 Unlike intimidation under KRS 524.040, retaliation under KRS 524.055 does not require any direct or indirect communication of a threat to the victim. Kentucky has not had the opportunity to address this question, but other states agree with this conclusion. See, e.g., Hammonds v. Maryland, 80 A.3d 698 (Md. App. 2013).
-7- When Thomas came forward as a child, she faced the unfortunate
realities of a trial of such charges. Despite DNA evidence, people doubted
Thomas. She was accused of making prior false allegations. Thomas felt more
than let down by the process. It should be noted that the neighbor was convicted
and sentenced to prison.6 To this degree, Thomas was vindicated. That no doubt
did not take away from the negative feelings Thomas had about the process she
had experienced in the criminal justice system.
Later, as a teenager, Thomas was sexually abused by a high school
teacher (“Goodpastor”).7 Unlike her prior case, this later case occurred in Warren
County. This is the connection that would later lead to the threats made in the
present case. Goodpastor was indicted for Third-Degree Sodomy, a Class “D”
felony subject to a prison term of one to five years.
There was no trial in Goodpastor’s case. His charge was amended to
Second-Degree Unlawful Transaction with a Minor, also a Class “D” felony. He
pled guilty. During the trial in the present case, Thomas’ mother said that all that
happened to Goodpastor was that he lost his job. That does not appear to be
6 Commonwealth v. Kenneth Ray Capshaw, Monroe Circuit Court Case No. 05-CR-00063. This Court affirmed the conviction. Capshaw v. Commonwealth, 253 S.W.3d 557 (Ky. App. 2007). 7 Commonwealth v. Douglas James Goodpastor, Warren Circuit Court Case No. 08-CR-00385.
-8- accurate. Goodpastor was sentenced to serve two years and was denied shock
probation.
Thomas offered the criticism she had made about the Goodpastor case
as a related explanation that she was just expressing her frustration, not really
threatening to kill anyone. In further support of her intention, Thomas planned to
call her mother as a witness. During a bench conference, inevitable limitations for
what this witness could say about what Thomas said were discussed.
Generally, the statements of a defendant are hearsay unless offered
against them. KRE 801A(b). There are exceptions to the hearsay prohibition. For
example, statements about a person’s “then existing mental, emotional, or physical
condition” are permitted. KRE 803(3). But this can only go so far. Thomas’
mother may have been able to describe times when Thomas was angry or agitated,
but this would not allow a wholesale introduction of everything Thomas said to
explain her feelings.
We offer an example of KRE 803(3) evidence. A witness testifies
that a party to a case said she planned to get a divorce. This statement would fit
within KRE 803(3). When asked why she intended to seek a divorce, the party
gives specifics about various prior events in the marriage. These factual details
would not necessarily be part of the hearsay exception, which is limited to
expressions about current intent or state of mind.
-9- Thomas argues the circuit court prevented her from calling a witness.
That is inaccurate. The circuit court did not prevent the calling of any witness.
The circuit court properly expressed concern about anticipated and proper
objections and the limitations the court would have to impose on the testimony.
Thomas chose not to call her mother as a witness and further chose, as she had the
right to do, not to testify herself about her state of mind and intentions.
Thomas made no further record, such as an avowal of specific
questions and answers. Although there was no error in this regard, any such error
would have been harmless. RCr8 9.24. Thomas presented her defense about her
intentions through evidence of her other comments through other witnesses. What
limited evidence might properly have come from Thomas’ mother under KRE
803(3) would have been cumulative or would not have resulted in a different
verdict given all the other evidence in this record. This evidence includes the
actions by Thomas of deactivating the social media account just after sending the
messages and then being initially dishonest with the police about the account and
the messages sent.
The remaining claims of error ultimately both relate to the jury
instructions. Throughout discovery and during the trial, there was no question that
the threats made included Bumgarner’s children. While Thomas sought to limit
8 Kentucky Rules of Criminal Procedure.
-10- evidence to the statements about death to Bumgarner herself, the circuit court
correctly permitted evidence about the threatened death to Bumgarner’s children.
All the threats were made at the same time and indicated the same criminal motive
and intent.
In discussing instructions, Thomas argued the instructions should be
limited to Bumgarner herself because that was the only name in the Indictment.
Instead of altering the instructions, it appears the circuit court agreed to the
Commonwealth’s request to amend the Indictment to include a reference to the
children. A review of the record does not show that the Indictment was in fact
amended. The writing on the Indictment itself was not altered, and no written
order added the language about the children. Yet, the circuit court did orally
indicate the amendment was proper and ordered it.
KRS 524.055(3) specifically includes the immediate family of the
participant. This overlaps with KRS 524.010, which provides definitions for the
same statutory chapter. Bumgarner clearly was a prosecutor as defined in KRS
524.010(7). A prosecutor is a participant in the legal process as defined by KRS
524.010(3). Significantly, by definition, every individual participant “includes
members of the participant’s immediate family.” Id. Thus, with the threats about
the children known to the defense from the beginning of this case, the reference to
-11- Bumgarner alone arguably should have been sufficient notice to include her
children.
The dissent understandably expresses concern about RCr 6.16, which
instructs the court as to amendments to an indictment. Perhaps it would have been
better practice to name the children in the original Indictment. Even with the
typical use of initials for children, their identity would have been easy for the
public to determine. This concern may have led to the omission.
Last minute amendments to Indictments may be permitted by our
rules, but they should be avoided. Our question here was whether the circuit court
abused its discretion in the particular circumstances of this case. And if so, was
this error harmful to Thomas?
RCr 6.16 permits amendment of an indictment at any time before a
verdict is received by the court “if no additional or different offense is charged”
and there is no prejudice to the substantial rights of the defendant. Thomas faced
one count of Retaliation Against a Participant in a Legal Proceeding before the
amendment and after it. The difference was only in identifying the victim or
victims.
In Clark v. Commonwealth, 267 S.W.3d 668 (Ky. 2008), the
Kentucky Supreme Court discussed a change of name in an indictment at trial.
While addressed in the context of palpable error, the analysis of RCr 6.16 is
-12- helpful to our question here. The basic idea is that “a defendant should be aware of
the crimes charged against him and the evidence forthcoming so that he may
prepare a defense.” Id. at 679. “[U]nder modern rules the essential question when
examining variance between the indictment and the proof is whether the defendant
had fair notice and a fair trial.” Johnson v. Commonwealth, 864 S.W.2d 266, 272
(Ky. 1993).
From the beginning, Thomas knew of the evidence about the
simultaneous threats to the children. Given the intertwined nature of the
communications about Bumgarner and her children, which were evidence of the
nature of the threat and the intent behind it, Thomas’ counsel could not be
surprised about the admissibility of this evidence. When the circumstances of this
case are examined as a whole, there was no prejudice to Thomas by the addition of
the children’s names. The circuit court did not err in the amendment of the
Indictment or the consistent jury instructions. Even if there were any error in this
regard, it was harmless.
This leaves the question of a lesser included offense. Thomas insists
that Harassing Communications is a lesser included offense. A lesser included
offense is one that “is established by proof of the same or less than all the facts
required to establish the commission of the offense charged[.]” KRS
505.020(2)(a). We have found no prior appellate case in which Harassing
-13- Communications was determined to be a lesser included offense of Retaliation
Against a Participant in a Legal Proceeding. We find good reason for this dearth
of caselaw. Harassing Communications does not fit as a lesser included offense
for the retaliation charge.
Harassing Communications requires communication with the victim
using specified means. As we have previously pointed out, retaliation does not
actually require communication of the threat. Even if we could see our way clear
to consider the lesser included offense argument, Thomas would not have been
entitled to the instruction anyway. The circuit court was not required to give a
lesser included offense instruction in the circumstances of this case.
“An instruction on a lesser included offense should not be given
unless the evidence is such that a reasonable juror could doubt that the defendant is
guilty of the crime charged but conclude that he is guilty of the lesser included
offense.” Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977). Given the
admitted messages sent to a prosecutor speaking of her death and the death of her
children, a rational juror could not have concluded that Thomas was guilty of
Harassing Communications but not Retaliation Against a Participant in the Legal
Process. No level of “frustration” may serve as a defense or excuse to threatening
the death of a prosecutor and her children.
-14- CONCLUSION
The Warren Circuit Court committed no errors in its evidentiary
rulings or with its instructions to the jury on the charge in this case. The Warren
Circuit Court is AFFIRMED.
KAREM, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
TAYLOR, JUDGE, DISSENTING: Respectfully, I dissent. The original
indictment in this case only named the prosecutor, not her children, as the
purported victim of the charges against appellant arising from threats made in
violation of KRS 524.055. While the statute clearly provides that threats made
against the children could be a violation thereof, the children were not named in
the original indictment as victims. The Fifth Amendment mandates that a
defendant may only be tried for criminal conduct that is set forth in an indictment
by a grand jury. Stirone v. United States, 361 U.S. 212, 217-19 (1960).
The Commonwealth’s motion to amend the indictment at the close of
evidence to add the children as victims, and effectively create new charges against
the defendant, was clearly prejudicial in total contravention of RCr 6.16.
Similarly, including threats against the children in the jury instructions was
reversible error, in my opinion.
-15- As the majority notes, the Commonwealth moved to amend the
indictment to include the children as victims at the close of evidence at trial, which
was granted by the trial court and is reflected in the jury instructions. The
Commonwealth had over eight months to amend the indictment prior to trial, yet
failed to do so. While the additional charges naming the children as victims were
the same type of crimes as committed against the prosecutor, they nonetheless are
entirely separate criminal acts against other victims. This clearly constituted an
unfair surprise to the defendant in planning her trial strategy and more importantly,
was unduly prejudicial for the defendant in the eyes of the jury.
Under these circumstances, I do not believe this was harmless error. I
would vacate the judgment and remand for a new trial.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kathleen K. Schmidt Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-16-