RENDERED: OCTOBER 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1629-MR
WESLEY ALDRIDGE APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE TIMOTHY C. STARK, JUDGE ACTION NO. 19-CR-00197
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Wesley Aldridge (“Aldridge”) appeals, as a matter of
right, his judgement of conviction in the Graves Circuit Court for first-degree
possession of a controlled substance (methamphetamine) and possession of drug
paraphernalia. Aldridge concedes he did not preserve the issues he raises on
appeal and requests review for palpable error. Finding no error, we affirm. On April 27, 2019, Aldridge was walking down the side of a highway
when Sergeant Richard Edwards (“Sergeant Edwards”) of the Graves County
Sheriff’s Department offered him a ride. Aldridge accepted the offer and got in the
back of Sergeant Edwards’s police car. After entering the car, Sergeant Edwards
asked Aldridge for his name and if he had any contraband or anything dangerous in
his possession. Sergeant Edwards did not promise Aldridge he would not be in
trouble for whatever he had in his pockets. Aldridge gave Sergeant Edwards his
name and handed him a syringe. Aldridge claimed he was diabetic. As Aldridge
did not have any diabetic testing equipment in his possession, Sergeant Edwards
was suspicious that the needle was for diabetes.
Sergeant Edwards called Aldridge’s information into dispatch and
learned Aldridge had a warrant out for his arrest. Sergeant Edwards then informed
Aldridge he was under arrest and drove him to the jail. Sergeant Edwards did not
search Aldridge before taking him to jail.
After taking Aldridge to jail, Sergeant Edwards performed a field test
on the syringe. Although he could not see anything in the syringe, the field test
was positive for methamphetamine. He logged the syringe into the Sheriff’s
evidence locker. Aldridge was charged with first-degree possession of a controlled
substance, third or greater offense (methamphetamine)1 and possession of drug
1 KRS (Kentucky Revised Statutes) 218A.1415 (Class D felony).
-2- paraphernalia.2 Thereafter, the syringe was sent to the Kentucky State Police
Crime Lab where it tested positive for methamphetamine.
Following a jury trial, Aldridge was found guilty on both counts. He
was sentenced to 1.5 years of incarceration. This appeal followed.
On appeal, Aldridge argues: (1) Sergeant Edwards impermissibly
bolstered his credibility and (2) the Commonwealth introduced evidence of a
dismissed charge during the penalty phase in violation of KRS 532.055(2)(a).
Aldridge concedes he did not object to these alleged errors below and now requests
review for palpable error.
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.
RCr3 10.26. An error is palpable only where it is “clear or plain under current
law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citation
omitted). Stated differently, an error is “palpable” when it would have been easily
perceptible, plain, obvious, and readily noticeable to the trial court. Gaither v.
Commonwealth, 521 S.W.3d 199, 205 (Ky. 2017).
2 KRS 218A.500(2) (Class A misdemeanor). 3 Kentucky Rules of Criminal Procedure.
-3- First, Aldridge argues Sergeant Edwards self-bolstered his trial
testimony. During trial, Sergeant Edwards testified for nearly an hour. The
Commonwealth began by asking Sergeant Edwards about his experience as a law
enforcement officer. He testified he had worked for the Graves County Sheriff’s
Department since 2008. He began as a court security officer, became a patrol
deputy in 2010, and was promoted to patrol sergeant in 2016. The Commonwealth
then asked Sergeant Edwards if he received any commendations for his work at the
sheriff’s department. Sergeant Edwards listed a few awards he could remember,
including an award for saving lives, a ribbon for doing CPR on patients, an award
for an active shooter scenario, a hometown hero award for pulling a man out of a
building following a tornado touchdown, several DUI awards, and some seatbelt
awards. This portion of his testimony lasted approximately thirty-five seconds of
his one-hour testimony.
Aldridge argues Sergeant Edwards’s testimony about his awards
amounted to impermissible self-bolstering by speculating it led the jury to believe
Sergeant Edwards was a well-respected officer who was telling the truth. The
Commonwealth argues Sergeant Edwards’s testimony regarding his awards was
admissible background information under Tackett v. Commonwealth, 445 S.W.3d
20 (Ky. 2014). In Tackett, the victim testified “she was involved in Beta Club at
school and that Beta Club is for students who are involved in community service
-4- and who have good grades and character. Tackett argue[d] that this testimony
impermissibly bolstered [the victim’s] other testimony.” Id. at 32. Our Supreme
Court held that although “[a] witness is not permitted to bolster her own testimony
unless and until her credibility has been attacked . . . , testimony regarding a
witness’s background is admissible.” Id. at 32-33 (citations omitted).
Additionally, the defendant put the victim’s credibility at issue during his opening
statement. Id. at 32.
Here, although Sergeant Edwards’s credibility was not at issue,
testimony regarding his awards while working for the sheriff’s department was
admissible background information. He did not specifically discuss his character
for truthfulness, and the awards were for heroic acts and not honesty. A reasonable
juror could discern the distinction.
Furthermore, even if the testimony was erroneous, it was harmless
error under RCr 9.24. “A non-constitutional evidentiary error may be deemed
harmless, the United States Supreme Court has explained, if the reviewing court
can say with fair assurance that the judgment was not substantially swayed by the
error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) (citing
Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)).
The inquiry is “whether the error itself had substantial influence” over the jury’s
verdict. Id. at 689.
-5- Sergeant Edwards’s testimony about his awards did not substantially
influence Aldridge’s conviction. The material facts resulting in his conviction are
not in dispute – Aldridge accepted a ride from Sergeant Edwards, he turned over a
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RENDERED: OCTOBER 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1629-MR
WESLEY ALDRIDGE APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE TIMOTHY C. STARK, JUDGE ACTION NO. 19-CR-00197
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
GOODWINE, JUDGE: Wesley Aldridge (“Aldridge”) appeals, as a matter of
right, his judgement of conviction in the Graves Circuit Court for first-degree
possession of a controlled substance (methamphetamine) and possession of drug
paraphernalia. Aldridge concedes he did not preserve the issues he raises on
appeal and requests review for palpable error. Finding no error, we affirm. On April 27, 2019, Aldridge was walking down the side of a highway
when Sergeant Richard Edwards (“Sergeant Edwards”) of the Graves County
Sheriff’s Department offered him a ride. Aldridge accepted the offer and got in the
back of Sergeant Edwards’s police car. After entering the car, Sergeant Edwards
asked Aldridge for his name and if he had any contraband or anything dangerous in
his possession. Sergeant Edwards did not promise Aldridge he would not be in
trouble for whatever he had in his pockets. Aldridge gave Sergeant Edwards his
name and handed him a syringe. Aldridge claimed he was diabetic. As Aldridge
did not have any diabetic testing equipment in his possession, Sergeant Edwards
was suspicious that the needle was for diabetes.
Sergeant Edwards called Aldridge’s information into dispatch and
learned Aldridge had a warrant out for his arrest. Sergeant Edwards then informed
Aldridge he was under arrest and drove him to the jail. Sergeant Edwards did not
search Aldridge before taking him to jail.
After taking Aldridge to jail, Sergeant Edwards performed a field test
on the syringe. Although he could not see anything in the syringe, the field test
was positive for methamphetamine. He logged the syringe into the Sheriff’s
evidence locker. Aldridge was charged with first-degree possession of a controlled
substance, third or greater offense (methamphetamine)1 and possession of drug
1 KRS (Kentucky Revised Statutes) 218A.1415 (Class D felony).
-2- paraphernalia.2 Thereafter, the syringe was sent to the Kentucky State Police
Crime Lab where it tested positive for methamphetamine.
Following a jury trial, Aldridge was found guilty on both counts. He
was sentenced to 1.5 years of incarceration. This appeal followed.
On appeal, Aldridge argues: (1) Sergeant Edwards impermissibly
bolstered his credibility and (2) the Commonwealth introduced evidence of a
dismissed charge during the penalty phase in violation of KRS 532.055(2)(a).
Aldridge concedes he did not object to these alleged errors below and now requests
review for palpable error.
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.
RCr3 10.26. An error is palpable only where it is “clear or plain under current
law[.]” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citation
omitted). Stated differently, an error is “palpable” when it would have been easily
perceptible, plain, obvious, and readily noticeable to the trial court. Gaither v.
Commonwealth, 521 S.W.3d 199, 205 (Ky. 2017).
2 KRS 218A.500(2) (Class A misdemeanor). 3 Kentucky Rules of Criminal Procedure.
-3- First, Aldridge argues Sergeant Edwards self-bolstered his trial
testimony. During trial, Sergeant Edwards testified for nearly an hour. The
Commonwealth began by asking Sergeant Edwards about his experience as a law
enforcement officer. He testified he had worked for the Graves County Sheriff’s
Department since 2008. He began as a court security officer, became a patrol
deputy in 2010, and was promoted to patrol sergeant in 2016. The Commonwealth
then asked Sergeant Edwards if he received any commendations for his work at the
sheriff’s department. Sergeant Edwards listed a few awards he could remember,
including an award for saving lives, a ribbon for doing CPR on patients, an award
for an active shooter scenario, a hometown hero award for pulling a man out of a
building following a tornado touchdown, several DUI awards, and some seatbelt
awards. This portion of his testimony lasted approximately thirty-five seconds of
his one-hour testimony.
Aldridge argues Sergeant Edwards’s testimony about his awards
amounted to impermissible self-bolstering by speculating it led the jury to believe
Sergeant Edwards was a well-respected officer who was telling the truth. The
Commonwealth argues Sergeant Edwards’s testimony regarding his awards was
admissible background information under Tackett v. Commonwealth, 445 S.W.3d
20 (Ky. 2014). In Tackett, the victim testified “she was involved in Beta Club at
school and that Beta Club is for students who are involved in community service
-4- and who have good grades and character. Tackett argue[d] that this testimony
impermissibly bolstered [the victim’s] other testimony.” Id. at 32. Our Supreme
Court held that although “[a] witness is not permitted to bolster her own testimony
unless and until her credibility has been attacked . . . , testimony regarding a
witness’s background is admissible.” Id. at 32-33 (citations omitted).
Additionally, the defendant put the victim’s credibility at issue during his opening
statement. Id. at 32.
Here, although Sergeant Edwards’s credibility was not at issue,
testimony regarding his awards while working for the sheriff’s department was
admissible background information. He did not specifically discuss his character
for truthfulness, and the awards were for heroic acts and not honesty. A reasonable
juror could discern the distinction.
Furthermore, even if the testimony was erroneous, it was harmless
error under RCr 9.24. “A non-constitutional evidentiary error may be deemed
harmless, the United States Supreme Court has explained, if the reviewing court
can say with fair assurance that the judgment was not substantially swayed by the
error.” Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) (citing
Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)).
The inquiry is “whether the error itself had substantial influence” over the jury’s
verdict. Id. at 689.
-5- Sergeant Edwards’s testimony about his awards did not substantially
influence Aldridge’s conviction. The material facts resulting in his conviction are
not in dispute – Aldridge accepted a ride from Sergeant Edwards, he turned over a
syringe upon entering the police car, and the syringe tested positive for
methamphetamine. Because “the evidence was overwhelming” that Aldridge
possessed a syringe containing methamphetamine, there is no way testimony about
Sergeant Edwards’s awards influenced the jury’s verdict in this case. Id. Thus,
there was no palpable error.
Second, Aldridge argues that, during the penalty phase, the
Commonwealth introduced evidence of a prior charge that was dismissed in
violation of KRS 532.055(2)(a)2. Robinson v. Commonwealth, 926 S.W.2d 853,
854 (Ky. 1996). During the penalty phase, a probation and parole officer read
evidence of Aldridge’s four prior felony convictions. The officer listed each
charge Aldridge was convicted of in each of the four cases. While reading Exhibit
3, a judgment of conviction from Graves County, the officer read the charges of
first-degree possession of a controlled substance, first offense (methamphetamine);
second-degree possession of a controlled substance; third-degree possession of a
controlled substance; and possession of drug paraphernalia. The officer
immediately stated the misdemeanor possession of drug paraphernalia charge had
been dismissed.
-6- The introduction of evidence of a dismissed charge was clearly a
violation of KRS 532.055(2)(a)2. However, the error was harmless. RCr 9.24.
Under the palpable error standard, it is not enough for Aldridge to show “the mere
possibility of prejudice.” Parker v. Commonwealth, 482 S.W.3d 394, 407 (Ky.
2016). Instead, he is required to show “a likelihood – ‘a reasonable possibility’ –
that, but for the error, a different sentence would have been imposed.” Id. at 407-
08 (citation omitted).
The penalty range for first-degree possession of a controlled substance
is one to three years. KRS 218A.1415. Aldridge was sentence to 1.5 years of
imprisonment. There is no dispute he possessed a syringe that tested positive for
methamphetamine, and he had four prior felony convictions, two of which were for
similar drug offenses. His sentence “is readily . . . accounted for by properly
admitted evidence.” Parker, 482 S.W.3d at 408. Aldridge failed to show any
likelihood that mention of the dismissed misdemeanor resulted in being sentenced
to six months over the minimum penalty of one year. Instead, evidence of his four
prior felony convictions, which were properly admitted, likely influenced the
sentence of 1.5 years. Therefore, there was no palpable error.
For the foregoing reasons, we affirm the judgment of the Graves
Circuit Court.
ALL CONCUR.
-7- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
-8-