RENDERED: MARCH 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0385-MR
TROY DUNKLEBERGER APPELLANT
ON APPEAL FROM WOLFE CIRCUIT COURT V. HONORABLE LISA HAYDEN WHISMAN, JUDGE NO. 20-CR-00024
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
This case is before the Court as a matter of right from Wolfe Circuit
Court upon the Appellant’s, Troy Dunkleberger, conviction for first-degree
manslaughter. He was sentenced to twenty years in prison. Dunkleberger
argues the evidence presented at trial—that he screamed Jarron Slayback’s
name and displayed his lawfully possessed and holstered firearm—prior to
drawing that weapon and killing Slayback did not justify an initial aggressor
instruction. Dunkleberger also raises arguments regarding alleged errors of the
trial court in excluding pieces of evidence.
Upon review, we reverse his conviction. To qualify for an initial aggressor
instruction there must be some act of unlawful physical force first perpetrated
by the defendant which in turn gives rise to a right to defend oneself in the
victim. Neither yelling a name nor displaying a holstered, lawfully possessed firearm constitutes an unlawful act of physical force. Therefore, the evidence
below was insufficient as a matter of law to justify the initial aggressor
instruction. The trial court abused its discretion in giving the instruction, and
reversal is warranted.
I. Facts The weekend of June 16, 2020, was intended to be a vacation.
Dunkleberger and his fiancée, Samantha, and three children; Jordan and
Megan Simpson, and her two children; and Megan’s brother, Slayback, all
travelled from Cincinnati to Red River Gorge in Wolfe County. Megan and
Samantha were childhood friends, and the men regularly associated and shot
guns together on weekends. Unfortunately, the weekend was not as wholesome
as it sounds. Slayback brought two bags of hallucinogenic mushrooms,
according to Jordan. Jordan and Slayback partook of the mushrooms the first
night and, according to Jordan, so did Dunkleberger, but the latter disputes
this.
After dinner the first night, the group sat around a campfire swapping
stories, and the topic came to past relationships. It was discussed that
Slayback and Samantha had dated fifteen years’ prior for a short time.
According to Jordan, this made Dunkleberger jealous to the point that he slept
separately from Samantha that night. But Dunkleberger denied this, testified
he never saw any behavior by Slayback that would anger him or make him
jealous, and that he stayed up with Jordan and Slayback that whole night, not
going to bed until 10 a.m. the next day.
2 The next afternoon the adults continued drinking. Megan particularly
was concerned Slayback was being so loud that she feared the police would be
called. Dunkleberger was frustrated with Slayback’s behavior and expressed
his frustrations to Jordan. While others thought it no more than typical
behavior of a drunken Slayback, Jordan did advise Slayback to calm down.
Later that evening, inside the cabin, Slayback was playing with Megan’s two
children. Jordan thought this was no more than roughhousing, but he was
apparently outside preparing to go fishing. Dunkleberger thought the
roughhousing was excessive and potentially harmful. Dunkleberger yelled
Slayback’s name three times to get his attention and put an end to it, which
succeeded. Slayback ceased playing with the kids and walked to a different
part of the cabin.
Dunkleberger in turn grabbed some beer and went outside to the
campfire with Jordan. Slayback came outside only minutes later. At this point,
the testimony of events diverges significantly. According to Dunkleberger,
Slayback approached him and pushed him several times and began arguing
with him. A threat was made by Slayback that he would “gut” Dunkleberger
“like a fish.” Slayback was in fact carrying a CRKT fixed-blade knife hanging
from his neck. But concerning for Dunkleberger was Slayback’s hand
movements around his left pocket. Dunkleberger saw a bulge in the pocket,
and when Slayback partially turned his body back towards the house, he
perceived a movement to the pocket. Dunkleberger testified he believed
Slayback was trying to pull a weapon. Therefore, he drew his own Glock 23 and
3 shot Slayback eight times. It would turn out Slayback did have a flashlight in
his pocket, accounting for the bulge. But Dunkleberger conceded there was
nothing in Slayback’s hand at the moment he shot him.
According to Jordan, however, when Slayback approached Dunkleberger
after coming out of the cabin, he engaged in a purely verbal confrontation. The
two were nose to nose, but Slayback had his hands behind his back and never
pushed Dunkleberger. Dunkleberger grabbed his shirt and lifted it up to reveal
the handle of his pistol in his waistband. Slayback responded, “What are you
going to do, pull a Glock on me?” Megan and Samantha were up on the porch,
demanding the two cease their argument. Slayback turned around to address
them at which point Dunkleberger drew his weapon and shot Slayback.
The Commonwealth requested an initial aggressor instruction.
Dunkelberger objected on the basis of the consistent testimony that Slayback
was the one who left the cabin, approached Dunkleberger, and began the
confrontation. The Commonwealth responded Dunkleberger was the initial
aggressor because Dunkleberger screamed Slayback’s name inside the cabin
and then during the confrontation revealed he had a gun in his waistband. The
trial court agreed an initial aggressor instruction was appropriate because of
“screaming the name and everything[.]” The instruction was given under
Instruction No. 11:
SELF-PROTECTION - INITIAL AGGRESSOR QUALIFICATION Provided however, that if you believe from the evidence beyond a reasonable doubt that Troy Dunkleberger was the initial aggressor in the use of physical force, the defense of self-protection is not available to him, unless 4 1. a) He did not initially intend to cause death or serious physical injury to Jarron Slayback and his initial physical force was not such that he thereby created and knew he was creating a substantial risk of death or serious physical injury to Jarron Slayback;
AND
b) The force returned or threatened by Jarron Slayback was such that Troy Dunkelberger believed himself to be in imminent danger of death or serious physical injury;
OR
2. a) Troy Dunkelberger withdrew from the initial encounter and effectively communicated to Jarron Slayback his intent to do so;
b) Jarron Slayback nevertheless continued or threatened the use of physical force against him. 1
1 Dunkleberger has not objected to the specific content, or lack thereof, of the
instruction. But it is worth noting if only to instruct bench and bar upon the law, that “an instruction qualifying the right of self-defense . . . without defining or pointing out the facts which would constitute such an act, was erroneous, since the jury would then be left to speculate as to what acts were sufficient to bring on the difficulty.” Menser v. Commonwealth, 257 S.W. 1038, 1039-40 (Ky. 1924) (quoting Mays v. Commonwealth, 255 S.W. 257, 258 (Ky. 1923)). This rule has been cited numerous times in the intervening years. Toncray v. Commonwealth, 165 S.W.2d 8, 10 (Ky. 1942); Burke v. Commonwealth, 249 S.W.2d 764, 767 (Ky. 1952); Hobbs v. Commonwealth, 481 S.W.2d 81, 83 (Ky. 1972); Mayfield v. Commonwealth, 479 S.W.2d 578, 579 (Ky. 1972). It has never been overruled and remains good law. The dissent’s suggestion that this rule is incompatible with the bare bones jury instructions rule falls flat because the bare bones rule has existed contemporaneously with it for the entirety of its existence. See Moore v. Damron, 164 S.W. 103, 104 (Ky. 1914). 5 The jury convicted Dunkleberger as described above, and we now consider the
merits.
II. Standard of Review “‘We review a trial court’s rulings regarding instructions for an abuse of
discretion.’” Holbrook v. Commonwealth, 525 S.W.3d 73, 87 (Ky. 2017) (quoting
Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006)). This applies “[w]hen
the error arises from giving an unwarranted instruction or failing to give a
warranted instruction[.]” Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky.
2018). While this case presents the question of whether the instruction was
warranted, that argument is in a fundamentally different posture than the
typical scenario.
Dunkleberger is not arguing there was insufficient evidence as a matter
of quantity. He is arguing the conduct identified to justify the initial aggressor
instruction was itself a legally inadequate basis to predicate the instruction. To
answer this question, we must look to the initial aggressor statute and its
definitions. KRS 2 503.060(3)(a); KRS 503.010. Therefore, this appeal presents a
threshold question of law which we review de novo. Commonwealth v. Moore,
545 S.W.3d 848, 850 (Ky. 2018) (interpretation of statutes subject to de novo
review). Only after answering this question can the Court declare whether the
trial court abused its discretion in giving the instruction. If the said conduct is
unlawful physical force under the statute, then the trial court did not abuse its
2 Kentucky Revised Statutes.
6 discretion. But if the said conduct is lawful physical force, then the trial court
did abuse its discretion since it is unlawful under any circumstances to
prosecute and punish a person for lawful conduct. Scott v. Commonwealth, 197
S.W.2d 774, 775 (Ky. 1946).
The dissent has unfortunately mistaken our statement of the standard of
review. We do not renounce the abuse of discretion standard; merely relegate it
to its proper position after a threshold question of law. Can words constitute
unlawful physical force or deadly physical force under the initial aggressor
statute? This is a question of law. If they cannot, then the trial court abused its
discretion in giving an initial aggressor instruction wholly or partially
predicated upon words. A trial court does not have discretion to commit errors
of law. The same principle applies to the display of a lawfully possessed and
holstered firearm. That specific act, as explained below, is protected by two
constitutions.
III. Analysis The use of physical force upon another is not justifiable when the
accused is the initial aggressor,
except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or (b) He withdraws from the encounter and effectively communicates to the other person his intent to do so
7 and the latter nevertheless continues or threatens the use of unlawful physical force.
KRS 503.060. Under this statute, ‘physical force’ is defined as “force used upon
or directed toward the body of another person and includes confinement.” KRS
503.010(4). ‘Deadly physical force’ is defined as “force which is used with the
purpose of causing death or serious physical injury or which the defendant
knows to create a substantial risk of causing death or serious physical injury.”
Id. at (1).
Two principles underlie the initial aggressor statute: “the original
aggressor's fault in starting the encounter; and the existence of a conflicting
privilege in the non-aggressor to defend himself against the defendant's initial
unlawful force.” KRS 503.050 Kentucky Crime Commission/LRC Commentary
(1974) (emphasis added). “[T]he essential feature which deprives him of the
right of self-defense is unlawful conduct in bringing on the difficulty.” Shell v.
Commonwealth, 240 S.W. 747, 749 (Ky. 1922). Thus, the question is not
whether yelling a name or displaying a holstered firearm is physical force and
therefore unlawful, but whether it is unlawful physical force.
These are questions of first impression. Heretofore in construing this
statute we have consistently held an initial aggressor instruction is warranted
when the defendant brandishes, i.e., draws and displays, the weapon openly
prior to the shooting. Kidd v. Commonwealth, No. 2020-SC-0433-MR, 2022 WL
2253588, at *4 (Ky. June 16, 2022); Kingdon v. Commonwealth, No. 2014-SC-
000406-MR, 2016 WL 3387066, at *4 (Ky. June 16, 2016); Cf. McCain v.
8 Commonwealth, No. 2012-SC-000696-MR, 2014 WL 2809868, at *1 (Ky. June
19, 2014). 3 Therefore, they are inapposite. The Commonwealth also points us
to the unpublished case of Lutin v. Commonwealth, No. 2019-SC-000442-MR,
2020 WL 2831464 (Ky. May 28, 2020). It is distinguishable as the defendant in
that case did not merely have a firearm holstered in his waistband but
physically touched, grabbed, and pulled the victim in a physical struggle he
instigated to remove the decedent from the home prior to drawing the weapon.
Id. at *4.
We conclude the yelling of Slayback’s name does not constitute physical
force inflicted upon or directed towards the body of another. “Numerous courts
have held either that one may not use force in self-defense from verbal
assaults, or that an aggressor instruction is not justified where the alleged
provocation is merely verbal.” State v. Riley, 976 P.2d 624, 630 (Wa. 1999)
(collecting cases). Indeed, children are frequently taught by the time they are in
kindergarten that “sticks and stones may break my bones, but words can never
hurt me.” This proverbial wisdom, simple enough for children of tender age to
understand, reflects the distinction between words and physical force. 4 By
3 The Commonwealth relied upon McCain at the trial court. But nothing in
McCain speaks to whether the defendant openly displayed a holstered firearm prior to the shooting. In fact, the testimony supported a belief that earlier in the day the defendant had accosted the victim with a tire iron in his hand. When the defendant and victim arranged to meet up for a fight later, the only testimony regarding the flashing of a gun was that the victim may have done so, but not McCain. McCain, 2014 WL 2809868 at *6. 4 While admitting the idiom is not strictly legal, the law reflects the same
wisdom.
9 requiring an unlawful act of physical force, the initial aggressor statute does
not allow words to predicate an initial aggressor instruction. As Montesquieu
once said,
Words do not constitute an overt act; they remain only in idea. When considered by themselves they generally have no determinate signification; for this depends on the tone in which they are uttered. It often happens that in repeating the same words they have not the same meaning; this depends on their connection with other things, and sometimes more is signified by silence than by any expression whatever. Baron de Montesquieu, The Spirit of the Laws 193 (Cosimo Classics 2011)
(1748). By remaining “only in idea” words do not inflict physical harm. They
may have an emotional impact which the hearer, subjectively, understands to
be emotionally or mentally harmful but KRS 503.060 is concerned only with
conduct resulting in or intending unlawful physical contact.
This holding does not contravene the well-known rule that “[a] challenge
to a mortal combat, an assault, or a personal affront of such serious character
as to be reasonably calculated to provoke and to precipitate a dangerous
assault from another, are generally deemed sufficient to authorize a jury to
deny the ordinary right of self-defense.” McCarty v. Commonwealth, 51 S.W.2d
249, 250 (Ky. 1932). Strictly speaking, however, when ‘fighting words’ are used
they can predicate a provocation instruction, not an initial aggressor
instruction. Taken in that light, yelling a name, while perhaps mildly offensive
to the name-bearer, is not a personal affront so serious as to precipitate a
violent response.
10 We must next review whether the display of a lawfully possessed and
holstered firearm constitutes unlawful physical force or deadly physical force.
We must do this, first, because the act itself was separate from the yelling of
Slayback’s name. While the Commonwealth attempts to portray these two
occurrences as part of one course of aggressive conduct, they are not. After
Dunkleberger yelled Slayback’s name the two parted ways for several minutes.
Even were we inclined to hold yelling a name could constitute unlawful
physical force, the testimony was unanimous that both Dunkleberger and
Slayback went to different parts of the property immediately afterward thereby
terminating the initial encounter. See Bowling v. Commonwealth, 244 S.W. 306
(Ky. 1922) (aggressor instruction erroneous where two brothers brought on first
difficulty by entering home and aiming pistols at victim but then departed 70
yards from home. Victim followed the brothers ten minutes later and initiated
second difficulty.). Therefore, Dunkleberger’s display of a holstered weapon
must be reviewed in isolation because if that act constitutes unlawful physical
force or deadly physical force, then the initial aggressor instruction could still
be justified.
To answer this question we look to the whole law. “‘[A]ppellate review . . .
is to be conducted in light of all relevant precedents, not simply those cited to,
or discovered by’ the trial court.” Gasaway v. Commonwealth, 671 S.W.3d 298,
314 (Ky. 2023) (quoting Elder v. Holloway, 510 U.S. 510, 512, 114 S.Ct. 1019,
127 L.Ed.2d 344 (1994)). Nor are we bound by the specific arguments of
counsel. “When confronted with a claim of lower court error, appellate courts
11 ‘review issues, not arguments.’” Id. (quoting Brewer v. Commonwealth, 478
S.W.3d 363, 368 n.2 (Ky. 2015)). Therefore, we begin with the organic law of
the Commonwealth—the Kentucky and Federal constitutions.
Americans have a constitutional right to carry a firearm for self-defense
purposes under the Second Amendment. New York State Rifle & Pistol Assoc. v.
Bruen, 597 U.S. 1 (2022). This includes openly carrying weapons in public. Id.
at 55. Kentuckians have a right to bear arms “in defense of themselves . . .”
under Ky. Const. § 1, cl. 7. Our constitution is “an exemplification of the
broadest expression of the right to bear arms.” Holland v. Commonwealth, 294
S.W.2d 83, 85 (Ky. 1956). Indeed, “the legislature is empowered only to deny to
citizens the right to carry concealed weapons.” Id. Thus, our constitution
unequivocally shields and favors open displays of firearms should a citizen
choose to arm him- or herself in public. Accordingly, “a person is granted the
right to carry a weapon openly[.]” Id.
Dunkleberger’s possession of the firearm was initially concealed. It is not
disputed that he was duly licensed to carry a concealed firearm. Therefore,
Dunkleberger’s possession of the firearm was lawful, in and of itself. A person
in a confrontation who reveals that he is in fact carrying a firearm by
displaying it, but not drawing the weapon from a holstered position, does not
commit unlawful physical force. The effect of displaying a concealed but
holstered firearm is to convert the carrying of the firearm from a concealed
position to an open position, nothing more. Since Dunkleberger was duly
licensed for concealed carry, his act of displaying his holstered firearm was
12 merely to go from one mode of lawful possession to another mode of lawful
possession.
While there is little case law touching upon the question since the
passage of KRS 503.060, there is an abundance of cases from the early reports
on the topic. It is worth noting therefore that KRS 503.060 was not intended to
alter the law as it stood prior to its passage. Charles v. Commonwealth, 634
S.W.2d 407, 409 (Ky. 1982). Lawful possession of a firearm, in and of itself, has
never been held to justify an initial aggressor instruction. In Carnes v.
Commonwealth, two men were made aware of threats against their life by the
decedent. 87 S.W. 1123, 1124 (Ky. 1905). After work one day, intending to go
get supplies for their families, the Appellants armed themselves, knowing the
probability they might encounter the victim. Id. That instinct proved prescient,
and a fatal encounter did arise. The trial court had given the old version of an
initial aggressor instruction. The Court of Appeals reversed, holding “[t]here
was no evidence that the accused sought or provoked the difficulty, unless
their going to the store armed with pistols was evidence of that fact.” Id. at
1125. And that was not good evidence of the fact since the Appellants had a
right to be armed for self-defense and had a right to go to the store to buy
supplies for their families. Id.
In the case of Radford v. Commonwealth, a landlord and his tenant were
disputing about rent owed. 5 S.W. 343, 344 (Ky. 1887). The tenant-decedent
was driving his wagon on the road passing by his landlord’s house. Id. The
landlord grabbed a gun and went out to stop him. Id. The landlord was elderly
13 while the tenant was in the prime of life. Id. Once the men arrived at the field
where the tenant’s crop was stored, the tenant left his wagon, whip in hand,
and approached the landlord who warned him not to get any closer. Id. The
tenant continued to approach, and the landlord killed him. Id. Once again, an
aggressor instruction was given which was reversed, as the “jury may have
thought that the mere taking of the gun along by the accused amounted to an
attack upon the deceased[.]” Id. at 345. In another landlord-tenant dispute
case, the landlord was portrayed as the aggressor by the Commonwealth for
entering the field he owned, despite the tenant previously instructing him not
to enter. Ayers v. Commonwealth, 242 S.W. 624, 626 (Ky. 1922). Both men
were armed with pistols. Id. The Court reversed, admonishing the
Commonwealth that, under the evidence presented, the landlord had not
“brought on the difficulty by reaching for or drawing his pistol before deceased
reached for or appeared to defendant to reach for his pistol, which is the only
conceivable thing defendant could have done, under the evidence, to bring on
the difficulty.” Id. at 627-28.
Then there is the case of Collett v. Commonwealth, 113 S.W.2d 861 (Ky.
1938). There, two relations got into a war of words at their father-in-law’s
home. Id. at 862. The victim was the one who accosted the defendant first. Id.
The victim then departed the home. Fifteen minutes later, the defendant took
his shotgun, which he habitually carried, and followed down the same road. Id.
One witness testified the defendant uttered, “I am not afraid of Burchell, I'll
learn him about cursing.” Id. at 863. None of the other several witnesses
14 corroborated that statement. Id. A few minutes later, with no eyewitnesses, the
victim and defendant got into a fight, and the victim was killed. Id. The
defendant testified without contradiction that the victim accused him of
following him, declared his intent to beat and kill him, and proceeded to
attempt it. Id. The Court reversed the aggressor instruction, holding “[t]he
qualification had no basis whatever in the proof heard[.]” Id. at 864.
From the foregoing, it is evident the mere lawful possession of a weapon
is not enough to predicate an aggressor instruction. That is not to say that all
cases are of such a character. In McDaniels v. Commonwealth, the defendant
and his wife were threatened at rifle point by their neighbor. 249 S.W.2d 546,
547 (Ky. 1952). The defendant went to his home to retrieve a rifle, ostensibly to
defend himself and his wife. Id. Returning to the spot of the initial encounter,
he encountered his wife halfway there yet proceeded to the spot despite the two
now being out of any immediate danger. Id. The neighbor, who was making his
own way home, was warned by a witness of McDaniels’ return. Id. The neighbor
then took cover and opened fire. Id. The Court held an aggressor instruction
was warranted, as McDaniels could have been believed to have essentially
renewed or brought about a second encounter. Id. at 548.
The dissent maintains that displaying a holstered firearm conveys the
message that the possessor is capable of exercising deadly force upon the
other; and that it could inspire fear in the victim thereby prompting him to
respond with violent force in turn. Both may very well be true. But it is in
altercations or confrontations that the right to bear arms obtains its greatest
15 import. Blackstone writes that in cases of self-defense, “the law . . . respects
the passions of the human mind; and . . . makes it lawful in him, to do himself
that immediate justice, to which he is prompted by nature, and which no
prudential motives are strong enough to restrain.” IV Tucker’s Blackstone 3 (St.
George Tucker ed., The Lawbook Exchange, Ltd. 2011) (1803). This remains the
law today. Elliott v. Commonwealth, 976 S.W.2d 416, 419 (Ky. 1998). When a
person has a genuine, subjective belief in the necessity of force to prevent the
imminent use of force or to stop the actual force being perpetrated upon him,
then he cannot be expected to act with reason; he cannot be expected to sit
and weigh the merits of one action over another. In self-defense scenarios, so
long as they are genuine, instinct is the law. Stanley v. Commonwealth, 6 S.W.
155, 156 (Ky. 1887); Tompkins v. Commonwealth, 77 S.W. 712, 713 (Ky. 1903).
Consider a hypothetical under the dissent’s contention. A woman
walking down a street is accosted by a man, cat-calling her, and making lewd
sexual remarks. She continues to walk away, telling him to stop and leave her
alone, but he continues following her. She feels threatened by the situation
even though no threat by word or act of violence has been committed. She may
decide to stand her ground 5 and lift her shirt to reveal the handle of a gun in
5 “It is the tradition that a Kentuckian never runs. He does not have to.” Gibson
v. Commonwealth, 34 S.W.2d 936, 936 (Ky. 1931). While the General Assembly has codified this rule, KRS 503.055(3), our common law never imposed a duty to retreat. Commonwealth v. Hasch, 421 S.W.3d 349, 361 (Ky. 2013). Indeed, the courts of America in the 19th century universally abandoned the English rule that did impose such a duty. “[T]he tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save human life[.]” Gibson v. United States, 158 U.S. 550, 562 (1895) (quoting Runyan v. State, 57 Ind. 80, 84 (1877)).
16 her waistband or move her jacket to the side to reveal a gun holstered at her
hip to dissuade the man from continuing to follow her. She has an unqualified
right to turn around, display her holstered firearm, and command her pursuer
to cease his pursuit. The display of the holstered weapon is supposed to
provoke fear in the pursuer; it is supposed to convey to him, “I am capable of
deadly force and if you will not leave me alone, I may very well use it.” What
good is it otherwise? Is our hypothetical woman supposed to wait to be
attacked before merely displaying a holstered firearm? At that point, it will be
too late. It is precisely because our constitutions protect the right to openly
carry and display firearms that an act doing so, even if initially from a
concealed position in a confrontation, is a lawful act of physical force. The
display is not an act provoking violence but an attempt to quell it or head it off
before it arises. If we continue the hypothetical, and the woman is forced to
draw and kill her assailant after the display of her holstered weapon, she would
be on the hook for being the initial aggressor under the dissent’s interpretation
of the law; depriving her of the right of self-defense and triable by a jury. Such
an outcome turns the right to bear arms against itself, destroying the right by
the very purpose of its existence.
It is no answer that a jury might look at such facts and reach the
commonsense conclusion that the woman acted in lawful self-defense, or,
similarly, that the jury could have rejected the initial aggressor instruction
17 below. The point is it is not subject to a jury’s determination—it is a legally
inadequate basis upon which to predicate an initial aggressor instruction. It is
a basic reality of life that evil men perpetrating or intent on perpetrating
violence can often only be made to desist by the violence of good men opposed
to them. It is equally true that untold numbers of men and women find
themselves physically incapable of defending their selves with hand-to-hand
violence for a variety of reasons, and carry a firearm so as not be at the mercy
of stronger, more violent others. To the dissent’s proposition that merely
displaying a holstered and lawfully possessed firearm, even in an altercation or
confrontation, can make one an initial aggressor—
we can not accede to the correctness of this rule, no authority is cited in support of it, and we believe none, sufficient to sustain it, can be found. Its recognition, would singularly and essentially curtail the right of self-defence in this state, as heretofore supposed to be and long acted upon, with the approbation of all the virtue and intelligence of the community. In such a community, where the rights of self-defence are so dearly cherished and so well maintained by the sentiments of our population, it would not merely be with reluctance, but extreme regret that we should acknowledge ourselves compelled to adopt or follow so restricted a rule.
Gray v. Combs, 30 Ky. 478, 480 (1832).
Finally, the display of a holstered firearm, even if it does convey a
message of potential deadly physical force, is not within the meaning of the
initial aggressor statute. Deadly physical force is “used with the purpose of
causing death or serious physical injury or which the defendant knows to
create a substantial risk of causing death or serious physical injury.” KRS
503.010(1). By the plain language of the text, conveying a message of potential 18 deadly physical force is not covered. The statute requires conduct, an overt act,
with the purpose, i.e., intent, of literally causing or knowingly creating a
substantial risk of death or serious physical injury. Displaying a holstered gun
cannot cause death or serious physical injury to another. The gun is holstered,
aimed away downward or withal not at the potential victim, and there is no
finger on the trigger. The gun may indeed have the safety clicked on preventing
it from firing altogether. Therefore, it is not an action with the purpose of
causing death or serious physical injury. Nor can a holstered gun create a
substantial risk of death or serious physical injury to another for the same
reasons.
First degree wanton endangerment charges are instructive here since
that crime also requires the creation of a substantial risk of serious physical
injury or death. KRS 508.060(1). In that regard, we have held for decades that
where a defendant did not draw his firearm nor aim it at any person, he did not
create a substantial risk of death or serious physical injury. Gilbert v.
Commonwealth, 637 S.W.2d 632, 633 (Ky. 1982); Bell v. Commonwealth, 122
S.W.3d 490, 498 (Ky. 2003); Swan v. Commonwealth, 384 S.W.3d 77, 103 (Ky.
2012). It is obvious then, in a self-defense scenario, that merely displaying a
holstered firearm fails to create a substantial risk of serious physical injury or
death.
The dissent’s failure to appreciate these threshold issues of law leads it
to hold that a jury could reasonably conclude Dunkleberger was the initial
aggressor. Again, Dunkleberger’s only alleged misconduct is that he yelled
19 Slayback’s name (a constitutionally protected act of speech) and to display a
holstered firearm (a constitutionally protected right). The dissent points to
other evidence in the record which suggests Dunkleberger had a motive to kill
Slayback—jealousy and anger. While evidence of motive may tend to make a
disputed fact more likely than not, it has little bearing on whether the act itself
is illegal. “In general, motives may play a role in deciding whether a particular
person committed a crime but not in deciding whether a particular crime was
committed.” Hyman Gross, A Theory of Criminal Justice 103 (1979). In other
words, that Dunkleberger had a motive to be an initial aggressor is one thing;
whether his alleged conduct legally suffices to make him an initial aggressor
under the statute is an entirely separate question.
With all that said, we acknowledge displaying a holstered firearm can
constitute an act of initial aggression in some limited circumstances. For
example, a man may approach another person, display a holstered firearm,
and demand the person come with him. Such an act would certainly be
considered menacing, KRS 508.050(1); and could be understood as criminal
coercion. KRS 509.080(1)(a). A reasonable person in such a circumstance
would be entitled to believe that failure to obey the assailant will result in being
shot, justifying an act of deadly physical force in defense. Therefore, it would be
reasonable under such circumstances to conclude the display of the holstered
firearm, with the accompanying demand or threat, constituted an unlawful act
of deadly physical force. But that is a far-cry from the facts of this case.
20 Nor do we believe under current statutes and case law that Dunkleberger
is immune from all criminal prosecution. Absent the erroneous initial aggressor
instruction, the jury could have believed Dunkleberger acted in legitimate but
imperfect self-defense, either recklessly or wantonly, therefore he could have
only been convicted of second-degree manslaughter or reckless homicide.
Commonwealth v. Hager, 41 S.W.3d 828, 845-46 (Ky. 2001). Thus, we conclude
yelling Slayback’s name and Dunkleberger’s display of a holstered firearm were
legally inadequate to predicate an initial aggressor instruction. The trial court
abused its discretion, and its error in giving the instruction did prejudice
Dunkleberger so as not be harmless. Sutton v. Commonwealth, 627 S.W.3d
836, 849 (Ky. 2021) (erroneous jury instructions subject to harmless error
analysis).
Briefly, since there is a potential for re-trial in this case, we will discuss
the evidentiary errors claimed by Dunkleberger. We find none of them to be of
merit. Dunkleberger first argues the trial court erroneously excluded evidence
of Slayback’s conviction for possession of fentanyl in 2018. While the use of
drugs or alcohol in the immediate time period prior to the shooting can be
relevant, a conviction for drug possession two years prior is irrelevant and
likely prejudicial. Hubers v. Commonwealth, 617 S.W.3d 750, 784 (Ky. 2020)
(“Clearly evidence of a victim's drug use close in time to a crime allegedly
involving self-defense merits careful consideration but evidence of drug use
seven months prior to the victim's death lacks probative value and is most
likely unduly prejudicial.”). The trial court also excluded testimony regarding
21 Slayback’s alleged history of heroin use. There was no testimony that Slayback
had used heroin that weekend, therefore, neither its probativeness nor its
relevance were established. Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky.
1994). Dunkleberger also argues the trial court excluded evidence of Slayback’s
alleged use of hallucinogenic mushrooms that weekend. We find no basis for
that in the record. The trial court specifically ruled, “I will allow the use of
mushrooms, but nothing else other than what is in the tox screen[.]” Lastly, the
trial court is alleged to have abused its discretion in excluding a brief video
purporting to show Slayback drunk on the night before the shooting. We find
no abuse of discretion because such evidence was cumulative. Slayback’s
intoxication and drug use was amply demonstrated by several witnesses other
than Dunkleberger and a toxicology report. Hall v. Commonwealth, 468 S.W.3d
814, 824 (Ky. 2015).
Finally, Dunkleberger sought to admit a video of Slayback holding a gun
and containing audio of Slayback admitting he acquired the gun illegally while
on probation. This video was purportedly recorded months before the shooting.
Dunkleberger sought to admit this evidence when Jordan testified that he
knew Slayback owned a gun and demonstrated the size of it with his hands. In
other words, Dunkleberger was ostensibly trying to rebut Jordan’s description
of the size of the gun. The size of the gun, however, is a peripheral matter to
whether or not Slayback possessed it. “Even if other crimes evidence is
determined to be relevant for a proper purpose and is sufficiently probative of
the defendant's guilt, it may still be excluded on” the grounds of undue
22 prejudice. Bell, 875 S.W.2d at 890. The balancing of probativeness and
prejudice is confined to the trial judge and will not be disturbed absent an
abuse of discretion. Id. The trial court did not abuse its discretion in
concluding a months old video, containing an admission by the victim that the
gun had been acquired illegally, was unduly prejudicial especially considering
the only relevance the video had was to the size of the gun, and not possession
or existence of the gun itself.
IV. Conclusion Yelling a name does not constitute physical force under the initial
aggressor statute. The display of a previously concealed but holstered firearm
is generally not unlawful in and of itself under the Second Amendment and Ky.
Const. § 1, cl. 7. Nor does it become unlawful under the facts of this case, as
an altercation or dispute is when the right of self-defense, so long as it is
genuine, achieves its greatest import. The act itself does not cause death or
serious physical injury, nor does it create a substantial risk of such. Therefore,
it also cannot predicate an initial aggressor instruction. The trial court abused
its discretion, and we reverse Dunkleberger’s conviction. We instruct the trial
court that if a re-trial is conducted upon the same evidence, an initial
aggressor instruction is not to be given.
All sitting. Lambert, C.J.; Goodwine, Nickell, and Thompson, JJ., concur.
Keller, J., dissents by separate opinion which Bisig, J., joins.
23 KELLER, J., DISSENTING: I respectfully dissent. Not only does the
Majority assess Dunkleberger’s claim of instructional error under the incorrect
standard of review, but it also fails to consider Dunkleberger’s alleged act of
“physical force” in the appropriate context of the whole circumstances
precipitating his conflict with Slayback. I would affirm the Wolfe Circuit Court’s
decision to instruct the jury on the initial aggressor doctrine, because there
was sufficient evidence in the record from which a reasonable juror could
conclude that Dunkleberger was the first proponent of unlawful physical force
during his altercation with Slayback. More specifically, the overt act of pulling
up one’s shirt to reveal one’s holstered firearm could indeed constitute
“physical force,” as defined in KRS 503.010(4), when done with the intent to
threaten or intimidate another.
I. An appellate court reviews a trial court’s decision to give a particular jury instruction using an “abuse of discretion” standard.
The Majority has incorrectly evaluated the trial court’s decision to give
the jury an initial aggressor instruction using a de novo standard of review.
This Court’s prior decisions make clear that the only proper inquiry here is
whether the trial court “abused its discretion” in concluding that its initial
aggressor instruction was supported by the evidence.
Trial courts have a solemn duty to instruct the jury on “every state of the
case deducible or supported to any extent by the testimony.” Sutton v.
Commonwealth, 627 S.W.3d 836, 848 (Ky. 2021). Indeed, the decision to give,
or not to give, a particular instruction boils down to whether there is “sufficient
24 evidence” in the record to substantiate or “justify” that instruction. Id. at 853.
However, “[o]nce the trial judge is satisfied that it is proper to give a particular
instruction, it is reasonable to expect that the instruction will be properly
given.” Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013).
Accordingly, there are two kinds of instructional errors, each deserving of
their own standard of appellate review. “The first type of instructional error is
demonstrated by the claim that a trial court either (1) failed to give an
instruction required by the evidence, or (2) gave an instruction that was not
sufficiently supported by the evidence.” Sargent v. Shaffer, 467 S.W.3d 198,
203 (Ky. 2015), overruled on other grounds by University Medical Center, Inc. v.
Shwab, 628 S.W.3d 112 (Ky. 2021). “The second type of instructional error is
represented by the claim that a particular instruction given by the trial court,
although supported by the evidence, was incorrectly stated so as to
misrepresent the applicable law to the jury.” Id. Here, we are confronted with
the first kind of instructional error. On appeal, Dunkleberger specifically
argues that the evidence adduced at trial was insufficient to support the trial
court’s initial aggressor instruction, i.e., that the trial court erred in deciding to
give that particular instruction.
“A decision to give or to decline to give a particular jury instruction
inherently requires complete familiarity with the factual and evidentiary
subtleties of the case that are best understood by the judge overseeing the trial
from the bench in the courtroom.” Id. “Because such decisions are necessarily
based upon the evidence presented at the trial, the trial judge’s superior view of
25 that evidence warrants a measure of deference from appellate courts that is
reflected in the abuse of discretion standard.” Id. Accordingly, “[w]hen the error
arises from giving an unwarranted instruction or failing to give a warranted
instruction, we review the decision for abuse of discretion.” Commonwealth v.
Caudill, 540 S.W.3d 364, 367 (Ky. 2018) (citing Shaffer 467 S.W.3d at 203).
As further support for these principles, I look primarily to the abundance
of recent cases applying the “abuse of discretion” standard of review to
specifically assess a trial court’s decision to give, or not to give, an initial
aggressor instruction. See, e.g., Bowman v. Commonwealth, 686 S.W.3d 230,
247–48 (Ky. 2024); Downs v. Commonwealth, 620 S.W.3d 604, 613–14 (Ky.
2020); Alford v. Commonwealth, No. 2022-SC-0278-MR, 2024 WL 313431 (Ky.
Jan. 18, 2024). Further, even Dunkleberger himself concedes that this Court
should assess his claim of instructional error using our familiar abuse of
discretion standard. See Appellant’s Reply Brief, at *1. It is therefore only the
Majority who departs from our case law today and insists on using a de novo
standard of review to assess Dunkleberger’s claims. I cannot condone this
disregard for our settled legal standards.
II. A reasonable jury could conclude that Dunkleberger’s alleged act of revealing his firearm constituted unlawful “physical force” given the whole circumstances surrounding his altercation with Slayback. While maintaining that Dunkleberger’s specific act of raising his shirt to
reveal his holstered firearm does not constitute an act of unlawful physical
force or initial aggression, the Majority concedes that “displaying a holstered
firearm can constitute an act of initial aggression in some limited
26 circumstances.” What the Majority has failed to consider, however, is that it is
precisely the “whole circumstances” of this case—the facts and circumstances
underlying Dunkleberger and Slayback’s physical confrontation—that support
the trial court’s initial aggressor instruction. While the lone act of carrying or
possessing a holstered firearm is not in and of itself an act of unlawful physical
force, displaying that very same firearm so as to threaten or intimidate another
person can constitute unlawful physical force.
As the Majority aptly recognizes, not all displays of physical force
undertaken in the course of “self-protection” are justifiable under the law.
Indeed, fifty years ago, the General Assembly declared that “the use of physical
force by a defendant upon another person is not justifiable when . . . [t]he
defendant was the initial aggressor[.]” KRS 503.060(3). The General Assembly
did not, however, expressly define the phrase “initial aggressor.” It is this Court
therefore that has shaped the bounds of the initial aggressor doctrine in light of
KRS 503.060(3)’s ambiguity.
The purpose underlying the initial aggressor doctrine “is to prevent a
defendant from instigating a course of conduct then claiming he was acting in
self-defense when that conduct unfolds.” Conley v. Commonwealth, 599 S.W.3d
756, 775 (Ky. 2019) (quoting Randolph v. Commonwealth, 566 S.W.3d 576 (Ky.
Ct. App. 2018)). Relying on the text of KRS 503.060(3)(a), we have also required
that, “For a defendant to be the initial aggressor, the defendant must use
physical force prior to any act of purported self-protection.” Conley v.
Commonwealth, 599 S.W.3d 756, 776 (Ky. 2019) (emphasis added). The phrase
27 “physical force” as referenced in the initial aggressor statute is elsewhere
defined by statute as “force used upon or directed toward the body of another
person and includes confinement.” KRS 503.010(4). And today, the Majority
cites to the “Commentary” 6 accompanying the 1975 Kentucky Penal Code to
hold that a bona fide “initial aggressor” must not only use “physical force” prior
to his purported act of self-protection, but that his initial force must also be
“unlawful.”
Regardless, this Court has consistently held that a defendant’s actions
taken while in possession of a firearm can indeed constitute the requisite
“physical force” needed to justify an initial aggressor instruction. Indeed, those
acts of aggression need not even rise to actual physical contact with the victim
to constitute unlawful physical force. Even our most recent decisions indicate
that displaying or carrying a firearm in a threatening manner so as to evoke a
reasonable apprehension of fear in one’s victim is sufficient to constitute
“physical force” justifying an initial aggressor instruction.
In Kidd v. Commonwealth, we affirmed the trial court’s decision to give an
initial aggressor instruction where the defendant was alleged only to have
approached his victim’s car with a gun and then made that gun “clearly visible”
to the victim. No. 2020-SC-0433-MR, 2022 WL 2253588, *2 (Ky. June 16,
2022). A mere “twelve seconds” later, the defendant raised his gun and shot the
victim nine times. Id. On appeal, the defendant argued that the trial court’s
6 Pursuant to KRS 500.100, “The commentary accompanying [the Kentucky
Penal Code] may be used as an aid in construing the provisions of this code.” 28 initial aggressor instruction had been given in error, because “he never
committed an act of physical force prior to his shooting of [the victim], and that
he was doing nothing more than holding the gun as any other normal, law-
abiding citizen.” Id. at *4. This Court, however, affirmed that the defendant’s
display of his firearm was sufficient to support the trial court’s instruction. Id.
In Kingdon v. Commonwealth, we held that the trial court correctly
instructed the jury on the initial aggressor doctrine where there was evidence
in the record tending to prove only that the defendant “pursued” his eventual
victim onto a bus “so that he could confront [the victim] with a loaded gun.” No.
2014-SC-000406-MR, 2016 WL 3387066, *6 (Ky. June 16, 2016). In the midst
of a “heated argument,” the defendant was alleged to have then pulled that gun
from his waistband and shot the victim. Id. at *1.
In McCain v. Commonwealth, the defendant was alleged to have engaged
in an initial confrontation with the victim and was then alleged to have gone
home to retrieve a firearm. No. 2012-SC-000696-MR, 2014 WL 2809868, *1
(Ky. June 19, 2014). After retrieving that firearm, the defendant testified that
he set out with a group of friends to find the victim. Id. at *2. When the
defendant and the victim eventually made contact again later that day, the
defendant shot and killed the victim. Id. This Court affirmed the trial court’s
decision to give the jury an initial aggressor instruction qualifying the
defendant’s self-defense theory. Id.
Finally, in Bowman v. Commonwealth, the defendant was alleged to have
pointed his loaded firearm at his eventual victim’s head during an altercation
29 outside of a bar. 686 S.W.3d 230, 235 (Ky. 2024). The defendant was then
alleged to have shot and killed the victim moments later during a physical
struggle. Id. On appeal, this Court affirmed the trial court’s decision to give the
jury an initial aggressor instruction and stated that it would be “patently
absurd” to hold that the defendant’s act of pointing his gun at the victim prior
to shooting him did not constitute “physical force” justifying an initial
aggressor instruction. Id. at 248. Our recent holding in that case relied heavily
on the portion of KRS 503.010(4) which defines “physical force” as that force
“directed toward the body of another person.” Id. (Emphasis added).
Our decisions in these cases illustrate that a defendant armed with a
lethal firearm need not make actual physical contact with his victim to be an
“initial aggressor.” The defendant need only possess or showcase that firearm
in such a manner as to convey an imminent threat of actual physical violence.
Indeed, a person is guilty of criminal “menacing” in this Commonwealth “when
he intentionally places another person in reasonable apprehension of imminent
physical injury.” KRS 508.050(1).
The act of carrying, wielding, displaying, or brandishing a firearm with
the intent to signal impending physical violence is indeed “unlawful.” While the
act of raising one’s shirt to reveal or display one’s firearm during a physical
altercation is perhaps not as explicitly threatening or menacing as pointing
that firearm at another person’s head, both acts have the potential to inspire
the same “reasonable apprehension of imminent fear” in the mind of the victim.
30 Both acts constitute force “directed toward the body of another person.” KRS
503.010(4).
Further, a careful review of the evidence in this case makes clear that
while Dunkleberger was perhaps lawfully carrying his firearm, the “whole
circumstances” precipitating his conflict with Slayback tend to support the
theory that he revealed his firearm with the intent to threaten or intimidate
Slayback prior to shooting him. Indeed, “[i]t is the whole circumstances which
surround the incident that must be considered by the trial judge in deciding
whether an instruction on self-defense is proper or whether an instruction on
self-defense with limitations is proper.” Stepp v. Commonwealth, 608 S.W.2d
371, 374 (Ky. 1980). The Majority’s fixation on just one piece of evidence
ignores the totality of the circumstances.
Here, there is evidence tending to prove that Dunkleberger had grown
increasingly frustrated with Slayback throughout their vacation. There is
evidence suggesting that Dunkleberger harbored resentment toward Slayback
because of his prior relationship with his partner. Further, Dunkleberger
admittedly screamed at Slayback inside of their cabin prior to any physical
altercation outside. And finally, there is evidence in the record tending to prove
that, during their altercation, Slayback asked Dunkleberger, “What are you
going to do, pull a Glock on me?” Accordingly, while Dunkleberger’s act of
revealing or displaying his concealed firearm could perhaps seem innocent in
isolation, when that same act is viewed in the context of all the evidence
admitted at trial, a reasonable juror could have easily concluded that
31 Dunkleberger revealed his firearm with the intent to threaten or intimidate
Slayback.
The Majority’s opinion fails to place Dunkleberger’s actions in the same
context that the jury—and the trial court—heard that evidence. Because the
trial court’s superior view of the evidence of this case warrants some degree of
deference from this Court, I would conclude that the trial court did not abuse
its discretion in giving the jury an initial aggressor instruction over
Dunkleberger’s objection. Sargent, 467 S.W.3d at 203.
III. There is no requirement that an initial aggressor instruction cite to the supporting evidence underlying that instruction to adequately and intelligibly state the law.
Finally, I take issue with the Majority’s proposition that an adequate
initial aggressor instruction must point out the facts in the record which could
perhaps constitute an act of “physical force.” Rather, Kentucky has long
employed the “bare bones” approach to jury instructions, which requires only
that the trial court’s instructions intelligibly state the law and conform to the
language of the applicable statute—in this case, KRS 503.060(3).
“The fundamental function of jury instructions is to set forth what the
jury must believe from the evidence in order to return a verdict in favor of the
party bearing the burden of proof.” Hilsmeier v. Chapman, 192 S.W.3d 340, 344
(Ky. 2006) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky. 1974)).
“Kentucky has long employed the use of ‘bare bones’ jury instructions that
avoid an abundance of detail, providing only a framework of the applicable
legal principles.” Id. (citing Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (Ky. 2005)). In
32 the context of criminal jury instructions, a proper bare bones instruction
“conform[s] to the language of the statute.” Wright v. Commonwealth, 391
S.W.3d 743, 746 (Ky. 2012) (quoting Parks v. Commonwealth, 192 S.W.3d 318,
326 (Ky. 2006)). “[T]he ‘bare bones’ of the jury instruction can [then] be ‘fleshed
out by counsel in their closing arguments if they so desire.’” Sutton, 627
S.W.3d at 851 (Ky. 2021) (quoting Cox v. Cooper, 510 S.W.2d 530, 535 (Ky.
1974)).
Here, the trial court’s initial aggressor instruction not only conforms to
the language of the initial aggressor statute, KRS 503.060(3), but it also
mirrors the exemplar instruction provided in Cooper & Cetrulo’s Kentucky
Instructions to Juries, which does not suggest that a citation to supporting
evidence is necessary in an initial aggressor instruction. See 1 Cooper &
Cetrulo, Kentucky Instructions to Juries, Criminal § 11.11 (6th ed. 2024).
“While Cooper’s model instructions are of course not binding on this Court, we
have repeatedly noted their persuasive value.” Barker v. Commonwealth, 477
S.W.3d 583, 591 (Ky. 2015) (citing Goncalves v. Commonwealth, 404 S.W.3d
180, 193 n. 5 (Ky. 2013)).
While this Court’s predecessor had perhaps once required that initial
aggressor instructions be replete with detail over 100 years ago, see Menser v.
Commonwealth, 257 S.W. 1038, 1039–40 (1924), that practice and rule of law
has since faded into obscurity, and been supplanted by the “bare bones” rule.
Accordingly, I see no reason to revert to outdated practices at the expense of
33 modern progress. The law makes clear that the trial court’s role is to instruct
the jury on the law, not assess the facts of the case.
IV. Conclusion
In sum, the Majority’s opinion disregards and misconstrues the
applicable law surrounding a trial court’s jury instructions and this Court’s
role in reviewing those instructions. Further, because my careful review of the
record convinces me that a reasonable jury could conclude that Dunkleberger
was the first proponent of unlawful physical force, I cannot say that the trial
court abused its discretion by giving the jury an initial aggressor instruction.
Bisig, J., joins.
COUNSEL FOR APPELLANT:
Kathleen K. Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Joseph A. Beckett Assistant Solicitor General