Travis England v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 14, 2025
• Docket: 2023-CA-0815
• Status: Unpublished

Opinion

RENDERED: FEBRUARY 14, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0815-MR

TRAVIS ENGLAND APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN DAVID SIMCOE, JUDGE ACTION NO. 21-CR-00114

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, L. JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Appellant, Travis England (England), was convicted of

fourth-degree assault, first-degree wanton endangerment, first-degree possession of

a controlled substance (methamphetamine), and possession of drug paraphernalia.

He was sentenced to five years’ imprisonment and appeals to this Court as a matter

of right. England raises the following arguments: 1) the Commonwealth’s

opening and closing statements constituted prosecutorial misconduct; 2) a detective offered improper opinion testimony when he narrated and interpreted still photos;

3) it was improper and prejudicial to refer to a witness as a Sexual Assault Nurse

Examiner (SANE); and 4) cumulative error requires reversal.

For his first three arguments, England requests palpable error review

pursuant to RCr1 10.26 as follows:

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

. . . For an error to rise to the level of palpable, it must be easily perceptible, plain, obvious and readily noticeable. Generally, a palpable error affects the substantial rights of the party only if it is more likely than ordinary error to have affected the judgment.

Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation

marks and citations omitted). With this standard in mind, we turn to the record at

issue.

To reverse on an issue of alleged prosecutorial misconduct, the

prosecutor’s conduct must be flagrant, thus rendering the trial fundamentally

unfair. Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020). We use the

1 Kentucky Rules of Criminal Procedure.

-2- following four-factor test to determine whether a prosecutor’s comments constitute

reversible flagrant misconduct: “(1) whether the remarks tended to mislead the

jury or to prejudice the accused; (2) whether they were isolated or extensive; (3)

whether they were deliberately or accidentally placed before the jury; and (4) the

strength of the evidence against the accused.” Dickerson v. Commonwealth, 485

S.W.3d 310, 329 (Ky. 2016) (internal quotation marks and citations omitted).

In the present case, the Commonwealth repeatedly described England

as a “narcissist” and a “gaslighter” during opening and closing statements.2 We

have reviewed the Commonwealth’s statements, including the reading of lyrics to

the song, “the Narcissist.” Despite its gratuity, we cannot conclude that this

constitutes “manifest injustice.” Even assuming error – and that several of the

aforementioned factors may weigh in England’s favor – the fourth factor is

controlling in this instance. The victim testified extensively concerning the

underlying events. She specifically testified that England pointed a gun at her and

then hit her on the back of the head with it, causing injury. She also testified that

England threw a glass bottle of liquid foundation makeup at her, hitting her in her

forehead and causing injury.

2 Despite England’s contention, nothing in the testimony with which he takes issue indicates that the Commonwealth used these terms in the context of a “medical diagnosis.”

-3- Moreover, even if nothing in the underlying crimes for which England

was charged and convicted requires proof of deception or any other element for

which allegations of “narcissism” or “gaslighting” would be vital, it may

nevertheless be relevant in a domestic violence case such as the present. In any

event, it is highly unlikely that any of these contested statements affected the

judgment. Martin, 409 S.W.3d at 344. The jury acquitted England of the charge

of second-degree assault, opting instead for the lesser charge of fourth-degree

assault. The Commonwealth also correctly cites that the Kentucky Supreme Court

has tolerated harsh language used to describe defendants in previous cases. See

Murphy v. Commonwealth, 509 S.W.3d 34, 53 (Ky. 2017) (referring to the

defendant as a “monster”); Dean v. Commonwealth, 844 S.W.2d 417, 421 (Ky.

1992) (referring to the defendants as “crazed animals”); Ferguson v.

Commonwealth, 401 S.W.2d 225, 228 (Ky. 1965) (referring to the defendant as a

“beast”). Such terms rival, if not exceed, the negative implications associated with

“gaslighter” or “narcissist.” In response, England asserts that “gaslighter” or

“narcissist” were used much more frequently here than were the contested terms

employed in the cases cited by the Commonwealth. While recognizing the nuance

here, we cannot conclude that this constitutes “manifest injustice.”

For his second argument, England claims that Detective Chitla’s

testimony constitutes palpable error. His brief cites nearly the entirety of the

-4- testimony, wherein Detective Chitla explains pictorial exhibits introduced into

evidence. There is nothing in the cited testimony that would constitute statements

outside of Detective Chitla’s personal or professional knowledge, or that was

otherwise impermissible. We find no error here, certainly no palpable error.

We also find no palpable error arising from England’s next argument,

that it was improper and prejudicial to refer to a witness Lauren Bishop as a Sexual

Assault Nurse Examiner (SANE). The basis for this contention is that England

was not charged with a sexual offense, and that no such evidence was at issue. As

the Commonwealth correctly cites, however, Bishop, as a forensic nurse, examined

victims of any type of abuse – sexual, domestic violence, or assault. SANE was

one of her specialized credentials. There was no error here. Lastly, even if error(s)

occurred during trial, there is certainly no cumulative error requiring reversal.

Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Based on the

foregoing, we AFFIRM England’s conviction and sentence.

ALL CONCUR.

-5- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Kayley V. Barnes Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

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