IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 15, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0098-MR
TREYVON M. DOWNS APPELLANT
ON APPEAL FROM MARION CIRCUIT COURT V. HONORABLE SAMUEL TODD SPALDING, JUDGE NOS. 20-CR-00051 & 20-CR-00052
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Treyvon Malik Downs shot and killed Tevaughn Porter after meeting him
to discuss the sale of Xanax bars. The main issue at the jury trial was whether
Downs’s killing of Porter was justified by the doctrine of self-defense. Downs
was convicted of murder and tampering with physical evidence and sentenced
to a total of twenty-five years of incarceration.1 Downs raises trial errors
relating to whether the Marion Circuit Court erred in failing to grant directed
verdicts on the murder and tampering charges, erred in admitting improper
character evidence in violation of Kentucky Rules of Evidence (KRE) 404(b), and
1 Downs separately pled guilty to being a convicted felon in possession of a firearm and received a sentence of five years’ concurrent with his other sentences. Although this conviction is nominally being appealed, Downs has not raised any issue on appeal related to this conviction and sentence. cumulatively erred. We affirm as the motions for directed verdict were properly
denied and any errors as to the admission of evidence were harmless.
I. FACTUAL AND PROCEDURAL BACKGROUND
Just after midnight on March 3, 2020, Porter texted Downs asking
Downs if he wanted to buy any Xanax bars. At 3:26 a.m. they texted back and
forth and at 3:30 a.m., Downs called Porter. Shortly thereafter, they met on
Oak Street in Lebanon, Kentucky. While they were there, an altercation ensued
and sometime after 3:44 a.m. Downs shot a .38 caliber revolver five times. He
hit Porter once in the chest.
Gunshots woke several neighbors. Porter ran down Oak Street and
banged on at least two doors and yelled “Help me.”
Shannon Porter, who lived on Oak Street, heard someone beating on her
door and calling her name. After she asked who it was, the person answered
“It’s Tevaughn Porter. I’ve been shot.” Shannon knew Porter as she was related
to him through her husband.
Shannon let Porter inside her home. Porter repeatedly told her that he
had been shot by Trey Downs and was dying. Shannon called 911 and during
the call, Porter was recorded in the background stating that Trey Downs shot
him. Porter later died at the hospital as a result of a single gunshot wound to
his chest which entered his left chest by the armpit and exited his right chest
around his armpit.
Based on Porter’s identification of Downs as the shooter and text
messages on Porter’s phone, officers attempted to locate Downs. They
2 ultimately were able to obtain his phone number, called him and arranged to
take him to the police station for an interview.
Detective B.J. Burton with the Kentucky State Police interviewed Downs.
During the lengthy interview, Downs repeatedly denied any involvement in the
shooting, denied meeting Porter that evening and denied speaking to him that
night. He also denied having any involvement with drugs or Xanax pills, and
that he played with guns or used a gun that night.
Eventually, after being confronted with proof that he was involved,
Downs admitted to shooting Porter but told detectives that he acted in self-
defense because Porter was trying to kill him. Downs explained that Porter had
a gun and demanded money from Downs, Downs refused, they started
wrestling, Porter dropped the gun, Downs picked it up and Downs shot Porter
as he tried to run. Downs clarified that Porter had tried to sell Downs some
pills and when he refused Porter asked for money. Downs stated he tried to
give Porter $3, Porter saw the money in Downs’s hand and tried to grab it.
Downs made damaging admissions during the interview that were
contrary to his claim that he acted in self-defense. Downs stated that after they
had wrestled for the gun and Porter dropped it, “I get a hold of the gun, he’s
trying to run, and that’s when I shoot him.” When the detective asked “And,
he’s running away from you after you get a hold of the gun?” Downs answered,
“Yeah.” Downs also explained, “He seen when I picked it up. He was running,
and I’m like . . . I’m gone.”
3 Downs stated that after shooting Porter, he had someone drive him to
Hamilton Heights where he got rid of the gun. He identified on a map where he
left the gun and agreed to take them to the location. Once there, Downs told
the police where to find the gun. The revolver was wrapped in a shirt and
placed under a dirty diaper inside a grocery bag.
On June 1, 2020, Downs was indicted for murder, tampering with
physical evidence, and felon in possession of a handgun. Prior to trial, the
Commonwealth filed notice of its intent to introduce evidence pursuant to
Kentucky Rules of Evidence (KRE) 404(b). Ultimately, the trial court permitted
the Commonwealth to introduce photographs of Downs with guns, a silent
video showing Downs handling firearms, and texts from within ten days of the
killing which contained discussions relating to controlled substances, on the
basis that this evidence was relevant to show motive and rebut Down’s
assertions that he did not use guns, had “nothing to do with” pills or drugs,
and that he “wouldn’t rob [Porter].”
Downs’s account of what occurred on the night Porter was killed, as
presented in his opening statement, included a denial he was buying drugs
that night or had a gun with him. Downs stated Porter was selling drugs,
Downs did not want drugs but offered to give Porter $3 to help him out. Downs
stated Porter wanted more money, Porter used Porter’s gun to try to rob Downs
and Downs acted in self-defense.
4 Twenty-three witnesses testified for the Commonwealth about what
Porter and Downs had been up to that night, hearing the gunshots, the
resulting 911 calls, Shannon’s observations, and the subsequent investigation.
Admitted during trial was a video Downs posted on social media showing him
holding a similar black revolver to the murder weapon, text messages between
Downs and his sister Amber Downs about drugs, photos from Downs’s phone
showing him with weapons and drugs, and text messages between Porter and
Downs showing them discussing Downs’s possible purchase of an AR-type rifle.
Downs called four witnesses. He argued that Porter tried to rob him,
Downs took the gun away from Porter, and he shot Porter in self-defense.
Downs’s most important witness was Zach Robertson, who supported
Downs’s claim of self-defense. Robertson testified that at around 3 or 3:30 a.m.
on March 3, 2020, he was in a car parked at an apartment complex off Oak
Street waiting for his Tinder date to call him when he heard a commotion. He
looked in that direction and in the low light saw two black men at the end of
the road, one taller and one shorter (earlier in the trial it was established that
Porter was much taller than Downs). Robertson testified he saw the taller man
reach back to his waistband and grab a gun, and then saw a fistfight between
them. As they went to the ground, the shorter man picked up the gun and
stared firing almost instantly.
Robertson testified when he heard shooting he ducked. Then after a
short pause of maybe thirty seconds, when he looked back up the two men
were gone. Robertson testified he then drove away.
5 Robertson explained he did not know Downs. He did not come forward
earlier because he did not want to get involved. He only came forward after
speaking to an acquaintance of Downs who knew Downs was being charged
with murder; at that point he felt obligated to speak up because someone was
getting charged with murder for acting in self-defense.
II. ANALYSIS
A. The trial court did not err by denying Downs’s motions for a directed verdict on the murder and tampering with evidence charges.
Downs argues he sufficiently preserved this issue in moving for a
directed verdict at the end of the Commonwealth’s case and at the end of all
proof. In moving for a directed verdict, Downs only argued that for counts one
and two of the indictment “the Commonwealth has failed to meet its burden
regarding proof of the elements necessary in the indictments.”
For motions for a directed verdict to be properly preserved, it is not
enough that the defense makes such a general motion. The Kentucky Rules of
Civil Procedure (CR) 50.01 requires that “[a] motion for a directed verdict shall
state the specific grounds therefor.” As noted in Pate v. Commonwealth, 134
S.W.3d 593, 597-98 (Ky. 2004), and the cases cited in support thereof in
footnote 13, “Kentucky appellate courts have steadfastly held that failure to do
so will foreclose appellate review of the trial court's denial of the directed
verdict motion.” Therefore, “[m]erely moving summarily for a directed verdict or
making a general assertion of insufficient evidence is not enough” to preserve
any error. Commonwealth v. Jones, 283 S.W.3d 665, 669 (Ky. 2009).
6 Accordingly, Downs’s motions for directed verdict were insufficient to
preserve this issue and we may only review for palpable error. However, even
had these motions been properly preserved, Downs could not satisfy his
burden.
In Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), our Court
specified how motions for directed verdict are to be evaluated by the trial court
and then reviewed on appeal:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On 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.
1. Downs was not Entitled to a Directed Verdict on the Murder Charge.
Downs argues that the text messages between him and Porter could not
support the theory that he planned to rob Porter and, instead, supported the
opposite conclusion, that Porter planned to rob him. He also argues that
Robertson’s testimony established that Downs shot Porter in self-defense.
Therefore, Downs argues that the Commonwealth failed to refute that he was
privileged to act in self-defense. Downs additionally argues in his reply that
7 there was no evidence Porter was running away and the trajectory of the bullet
through Porter indicates that at most he was turned to his side.
Downs ignores that in his own statement to the detectives, he stated that
he shot Porter as Porter was running away. Also, as the Commonwealth points
out, Downs running away after shooting Porter and then concealing the gun is
also some evidence of a guilty conscience.
While there was evidence which supported Downs acting in self-defense
there was also evidence which supported Downs murdering Porter. The jury
was entitled to evaluate Robertson’s credibility and ability to accurately
interpret what he saw in low light. Ultimately, it was up to the jury to resolve
what occurred and it would have been inappropriate for the trial court to
resolve this issue through granting a directed verdict.
2. Downs was not Entitled to a Directed Verdict on the Tampering with Evidence Charge.
Downs argues that because he took the officers to find the gun, he could
not properly be found guilty of “removing” the firearm as the jury was
instructed as grounds for tampering. Downs argues it is reasonable to infer he
was leaving the scene of the crime to get himself away rather than for the
purpose of removing the firearm and there was no proof that he acted with
intent to prevent the evidence from being available at trial when he took the
gun with him. While he acknowledges that perhaps he “concealed” the gun, he
states the jury was not instructed on him committing tampering through
concealment.
8 The Commonwealth argues that there was sufficient evidence that Downs
concealed the gun. The Commonwealth also argues that the fact that Downs
took detectives to the location does not absolve him of the tampering charge
anymore than remedial action would undo a theft.
In considering whether it was palpable error for the trial court not to
grant Downs’s motion for a directed verdict, we are concerned not with the
specific jury instructions, but with what is required generally for a conviction
for tampering.
(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding[.]
Kentucky Revised Statutes (KRS) 524.100.
The circumstances of Downs fleeing with the firearm, hiding it, and then
denying any involvement with the shooting when questioned by the police
provide a basis for inferring that Downs removed or concealed the firearm with
intent to impair its availability in the official proceeding, however short-lived
that intent may have been. Therefore, we are confident there was sufficient
evidence to support a conviction for tampering through either concealing or
removing the firearm.2 It was properly left up to the jury to resolve this issue.
2 These acts are not synonymous. “Construed in a manner so as not to render the word ‘conceal’ redundant, ‘remove’ must refer to the act of changing the location or 9 In his reply brief, Downs makes two additional arguments about why he
should have been granted a directed verdict on the tampering charge. Downs
argues that at most he “attempted” to tamper and that it is a defense pursuant
to KRS 506.020 that he abandoned the effort to tamper. Whether Downs may
have only attempted or abandoned his efforts to tamper could perhaps have
gained traction if he had asked the trial court for instructions along those lines.
Downs also argues that if a suspect cannot “undo” tampering, there will
be no incentive for suspects to cooperate with police. Such an argument is
more appropriately addressed to the General Assembly as a reason why our
tampering statute ought to be amended. It does not provide a justification for
us to conclude that the trial court erred by failing to grant a directed verdict.
B. Any Error in Admitting KRE 404(b) Evidence was Harmless.—Preserved
Prior to trial, the Commonwealth filed a notice of its intent to introduce
KRE 404(b) evidence in the form of photographs and videos of Downs
possessing guns, videos of Downs rapping about murder and robbery, and text
messages between Downs and others related to drug trafficking. The
Commonwealth argued that this evidence should appropriately be introduced
during its case in chief to demonstrate “motive, intent, preparation, plan,
absence of mistake” and was also appropriate to admit to rebut Downs’s
statements to police during his interview that he did not handle guns, “had
position of a piece of an object in a way that moves it from the scene of a crime.” Commonwealth v. James, 586 S.W.3d 717, 725 (Ky. 2019).
10 nothing to do with” pills or drugs, and that he “wouldn’t rob [Porter].” Downs
objected to such evidence being admitted.
The trial court agreed to allow some photographs of Downs with guns, a
silent video showing him handling a gun, and texts from ten days before Porter
was killed which related to drugs and tied into why he may have been meeting
Porter as relevant to show motive and rebut Downs’s previous denials of
involvement with guns, drugs, and denial of robbing Porter. The trial court
excluded the music videos. After this evidence was admitted at trial, the trial
court admonished the jury not to consider this evidence as character evidence.
We review the trial court’s decision to admit this evidence for abuse of
discretion. Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005).
KRE 404(b), which concerns character evidence regarding “other crimes,
wrongs, or acts[,]” provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
Of note, “the list provided in KRE 404(b)(1) is illustrative rather than
exhaustive.” Kelly v. Commonwealth, 655 S.W.3d 154, 165 (Ky. 2022).
We apply the Bell v. Commonwealth, 875 S.W.2d 882, 889-94 (Ky. 1994),
test as summarized in Leach v. Commonwealth, 571 S.W.3d 550, 554 (Ky. 11 2019): “In order to determine if other bad acts evidence is admissible, the trial
court should use a three-prong test: (1) Is the evidence relevant? (2) Does it
have probative value? (3) Is its probative value substantially outweighed by its
prejudicial effect?”
It is usually fairly easy to determine whether evidence is relevant and
probative. Typically, the more challenging part of this evaluation is weighing
“the prejudicial nature of the ‘other bad acts’ evidence versus its probative
value.” Leach, 571 S.W.3d at 554. Such evidence “is, of course, prejudicial to
[the defendant] as all evidence of culpability is in a criminal proceeding” but is
still properly admissible so long as it is not “unduly prejudicial because it is not
unnecessary or unreasonable.” Luna v. Commonwealth, 460 S.W.3d 851, 873
(Ky. 2015) (footnote omitted).
To justify its exclusion, “[t]he prejudice must go beyond that which is
merely detrimental to a party’s case and be of such character that it ‘produces
an emotional response that inflames the passions of the triers of fact or is used
for an improper purpose.’” Kelly, 655 S.W.3d at 165 (quoting Robert G.
Lawson, The Kentucky Evidence Law Handbook, § 2.25[3][d], at 135 (4th ed.
2003)).
1. Some Text Messages between Downs and his Sister about Drugs were Properly Admissible and the Remainder were Harmless.
The trial court admitted text messages between Downs and his sister
Amber which concerned Xanax, marijuana and Percocet that took place on
February 27, 2020, through March 1, 2020.
12 Downs argues that evidence that “[he] was involved in drug transactions
with his sister was irrelevant to whether he killed Mr. Porter in self-defense[,]”
“did not go to motive, nor was this inextricable intertwined to the case[,]” and
would “make the jury hate him for something unrelated to the case” and
caused the jury to wonder if he was on drugs the night of the shooting.
The Commonwealth counters that it was appropriate that it be allowed to
introduce this evidence to counteract Downs’s previous statements to establish
his involvement with the drug trade and provide evidence of a motive for killing
Porter (to get drugs or money). The Commonwealth notes that texts admitted in
trial which Porter does not challenge, established that on the day of the murder
Porter texted Downs that Porter had Xanax to sell and call logs showed that
later a call was placed from Downs’s phone to Porter’s phone, they then met on
Oak Street and Downs shot Porter.
The messages concerning Amber asking Downs about getting “Xans” and
selling them to her was relevant, probative and more probative than prejudicial
because it set the scene and provided the story or context of the crime as other
messages made it clear that Downs was meeting Porter about obtaining Xanax.
See St. Clair v. Commonwealth, 455 S.W.3d 869, 885 (Ky. 2015). Downs having
a buyer for Xanax he obtained was part of the chain of events and was thus
intertwined with the events that led to Porter’s death and admissible pursuant
to KRE 404(b)(2).
In contrast, the messages relating to Amber stating she wanted “this
weed out of my house NOW” because it was smelly, Downs promising to get it
13 and stating the quantity, and Downs explaining that the “white residue” left on
Amber’s blender was “Prolly from that perc I crushed down” was of more
marginal relevance.
While, “[u]nder Kentucky law, prior inconsistent statements may be
introduced as an impeachment device and as substantive evidence[,]” McAtee v.
Commonwealth, 413 S.W.3d 608, 618 (Ky. 2013), if they would otherwise be
improper character evidence they must still satisfy the three part test regarding
relevance, probativeness and whether that probativeness is substantially
outweighed by the prejudicial effect of such evidence. These statements were
relevant and probative regarding Downs’s prior statements denying any
involvement with drugs, but also somewhat prejudicial as showing his more
extensive involvement with drugs. The prior statement regarding the Xanax
had already established the falsity of Downs having nothing to do with drugs,
and this was just piling on. However, considering the trial as a whole, this
evidence was harmless.
2. The Photos and Videos of Downs Handling Weapons and Drugs were Excessive but Harmless.
Downs argues that the twenty-seven photographs admitted into evidence,
which were taken from his phone, of him handling weapons and drugs were
irrelevant to the shooting on March 3, 2020, many were repetitive, and this was
highly prejudicial. He argues these photos “did nothing to help the jury
determine whether he was defending himself when he shot Mr. Porter. Instead,
they painted him as a liar who claimed he did not handle guns, nor messed
with drugs.” 14 Downs details the contents of each photo which included these general
categories: (1) photos of Downs (by himself or with other people) holding
handguns, long guns, AR-type rifles, and other weapons; (2) photos of guns or
advertisements for guns; (3) photos of other men holding guns; and (4) photos
of apparent marijuana and an apparent advertisement for Percocet.
Downs made denials in his interview about having anything to do with
guns and drugs. He also argued in his opening statement that the gun was not
his and he was not there to buy drugs. However, the evidence admitted at trial
established that Porter offered in a text to sell Downs some Xanax and then
Downs met Porter.
The evidence about the guns and drugs was relevant to help clarify
whether Downs’s account was accurate. His involvement in the drug trade
made it more likely that he was meeting Porter for the purpose of buying drugs.
His access to guns, made it more likely that the gun with which he shot Porter
may have been Downs’s gun.
However, the volume of photos was needlessly excessive and prejudicial
where Downs admitted later to having shot Porter and text messages
established Porter offered to sell Downs Xanax and Downs he had a reason to
purchase Xanax. The fact that Downs handled many types of guns, showed an
interest in guns and had photos related to drugs was cumulative of other
evidence, which was more properly admitted because it had additional
relevance. This evidence should have either been greatly limited or excluded,
but any propensity towards criminal behavior this evidence provided was
15 unlikely to sway the jury’s opinion as to whether Downs had acted in self-
defense or not against a known drug dealer. Ultimately the admission of such
evidence was harmless in light of the other proper evidence in the same vein.
3. The Text Discussion between Downs and Porter about Purchasing a Rifle was Harmless.
The trial court allowed into evidence a text exchange which took place on
January 28, 2020, concerning Downs possibly wishing to purchase an AR-type
weapon, with Porter acting as an intermediary. Downs argues this exchange
should not have been allowed as it was remote in time and had nothing to do
with the shooting.
We agree that this evidence was of limited relevance or probativeness,
but it did provide a sense of the relationship between Downs and Porter and
ultimately this short exchange was harmless.
C. Cumulative Error does not Require Reversal.
Downs argues that the individual errors he has identified, when
considered collectively warrant reversal for cumulative error.
[T]he doctrine [of cumulative error] is necessary only to address “multiple errors, [which] although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair.” Still, the doctrine is a limited one. “We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial.” If the errors have not “individually raised any real question of prejudice,” then cumulative error is not implicated.
Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (quoting Brown
v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010), internal citations
and paragraph break omitted).
16 Downs had the right to a fair trial, not a perfect one. McDonald v.
Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). We are confident that the
errors Downs identified regarding the admission of evidence relating to
guns and drugs, while improper, did not render his trial fundamentally
unfair. As Downs has said, the trial concerned whether he acted in self-
defense or not. His credibility as to whether his later account of self-
defense should be believed after he earlier denied any involvement with
Porter’s death or any involvement with a lifestyle involving guns and
drugs, was central to this determination. Porter was not presented as a
law abiding, wholly innocent party; there was evidence to suggest that
both men were involved in a criminal lifestyle and, so, they were on a
level playing field as presented as having similar propensities. Downs
even argued in his closing that both of them were drug dealers. Thus,
such evidence was ultimately harmless whether considered in isolation
or cumulatively.
III. CONCLUSION
We affirm the Downs’s convictions and sentences by the Marion Circuit
Court.
All sitting. All concur.
17 COUNSEL FOR APPELLANT:
Robert C. Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Joseph A. Beckett Assistant Attorney General