         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 16, 2016
                                                        NOT TO BE PUBLISHED

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                               2014-SC-000406-MR



JEFFREY KINGDON                                                        APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE AUDRA JEAN ECKERLE, JUDGE
                            NO. 12-CR-002268


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                   MEMORANDUM OPINION OF THE COURT

       AFFIRMING IN PART, REVERSING IN PART AND REMANDING

      A jury in the Jefferson Circuit Court convicted Jeffrey Kingdon of

murder, first-degree wanton endangerment, and tampering with physical

evidence. Consistent with the jury's sentencing recommendations, the trial

court fixed his sentence at twenty-five years' imprisonment for murder, to be

served consecutively to a one-year sentence for wanton endangerment, for a

total of twenty-six years. The trial court fixed his sentence for tampering with

physical evidence at one-year imprisonment, to be served concurrently with the

twenty-six year sentence.

      Kingdon now appeals as a matter of right, arguing that the trial court

erred by: (1) allowing testimony about his prior arrests; (2) denying a directed

verdict dismissing the wanton endangerment charge; (3) denying a directed
verdict dismissing the tampering with physical evidence charge; and (4) giving

initial aggressor and provocation qualification jury instructions. For the

reasons set forth below, we affirm the convictions for murder and wanton

endangerment, but we reverse the conviction for tampering with physical

evidence.

                                      I. BACKGROUND

       In the summer of 2012, Kingdon and his roommate, Martin Keehn, Jr.,

suspected that Rico Robinson had burglarized their apartment and stolen

money from them. Together with a friend named Carla Dowell, they decided to

confront Robinson as he rode on a Louisville TARC bus.' At the culmination of

a heated argument, Kingdon pulled a handgun from his waist and shot

Robinson in the head. Robinson died instantly, and Kingdon fled the bus with

the gun in hand. Alyssa Luckett, a passenger on the bus, was sitting within

feet of the altercation.

       Kingdon was arrested two weeks later, but his gun was never recovered.

Two video cameras mounted inside the bus recorded the incident. At trial, the

Commonwealth played the video from those cameras for the jury. As part of

his defense, Kingdon testified that he saw Robinson reach into his own pants

and pull out what Kingdon believed was a gun. 2 Kingdon argued that he shot

Robinson first because he believed Robinson was about to shoot him. We set

forth additional facts as necessary below.

       1 Transit Authority of River City (TARC) operates the public bus system in
Louisville.
      2   Investigating police officers later confirmed Robinson's possession of a gun.

                                             2
                                      II. ANALYSIS

A. Testimony about Kingdon's prior police involvement was harmless
   error.

      Kingdon first contends that his murder conviction should be overturned

because the trial court allowed the Commonwealth to elicit testimony about his

prior arrests and encounters with law enforcement. The following exchange

occurred as the prosecutor cross-examined Kingdon at trial.

    Prosecutor:         You knew that all this time people were looking for you?

    Kingdon:            Yes, I did.

    Prosecutor:         That the police wanted to talk to you?

    Kingdon:            I did, but we didn't want to talk to any police by
                        ourselves, we'd never been in any situation like this
                        before, so we .. .

    Prosecutor:         What do you mean situation like this? You've never
                        talked to police before?

    Kingdon:            Not like an interrogation situation.

    Prosecutor:         You've never been questioned by police before?

      Kingdon's counsel immediately objected and complained that the

Commonwealth was baiting Kingdon into disclosing evidence of his prior bad

acts in violation of Kentucky Rules of Evidence (KRE) 404(b). The trial court

ruled that Kingdon had "opened the door" to further questioning relating to his

prior involvement with law enforcement, and so Kingdon was forced to admit

his prior arrests.

      The Commonwealth does not contend that Kingdon's testimony opened

the door for a general inquiry into his history of prior police encounters or



                                          3
arrests. Instead, the Commonwealth asserts the error was harmless.

Kentucky Rule of Criminal Procedure (RCr) 9.24 provides in part: "The court at

every stage of the proceeding must disregard any error or defect in the

proceeding that does not affect the substantial rights of the parties."

      We agree the evidence was improperly admitted, but we also agree that

the error was harmless. An error in the admission of evidence is harmless

under RCr 9.24 if we "can say with fair assurance that the judgment was not

substantially swayed by the error."   Winstead v. Commonwealth, 283 S.W.3d

678, 689 (Ky. 2009) (citation omitted).

      The fleeting reference to Kingdon's prior involvement with police was of

minimal significance in the trial. In light of the fact that the jury saw an actual

video recording of the crime as it occurred, including the confrontation and

Kingdon's sudden act of raising his gun and shooting Robinson in the head, we

conclude without hesitation that this brief and vague reference to Kingdon's

prior encounters with police was harmless. Thus we affirm Kingdon's murder

conviction.

B. Kingdon was not entitled to a directed verdict on the wanton
   endangerment charge.

      Kingdon argues that the trial court erred by failing to grant a directed

verdict of acquittal on the charge of first-degree wanton endangerment. The

decision to grant a motion for a directed verdict is within the trial court's sound

discretion.   Wombles v. Commonwealth, 831 S.W.2d 172, 174-175 (Ky. 1992).

"The evidence must be viewed in the light most favorable to the

Commonwealth, with the Commonwealth's proof assumed true and questions

                                          4
of credibility and weight left to the jury." Allen v. Commonwealth, 395 S.W.3d

451, 456 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187

(Ky. 1991)). On review, the defendant must show "under the evidence as a

whole, it would be clearly unreasonable for a jury to find guilt."   Allen, 395

S.W.3d at 456 (citing Benham, 816 S.W.2d at 187).

      Kingdon couches the majority of his arguments in light of the first-degree

wanton endangerment jury instruction given at the close of evidence. That

instruction read:

      You will find Defendant, Jeffery Kingdon, guilty of Wanton
      Endangerment in the First Degree under this instruction if, and
      only if, you believe from the evidence beyond a reasonable doubt
      all of the following:

      A. That in Jefferson County, Kentucky, on or about July 23, 2012,
         Defendant, Jeffery Kingdon, brandished a loaded firearm near
         Alyssa Luckett;

      AND

      B. That he thereby wantonly created a substantial danger of death
         or serious physical injury to Alyssa Luckett;

      AND

      C. That under the circumstances, such conduct manifested
         extreme indifference to the value of human life.

Kingdon argues that he did not brandish the gun prior to shooting Robinson.

However, Kingdon's focus on the jury instruction is not the correct approach

because it puts the cart before the horse. A directed verdict motion is made

before the jury is instructed; thus this Court has said: "A directed-verdict

motion is reviewed in light of the proof at trial and the statutory elements of the

alleged offense. The directed-verdict question is not controlled by the law as
                                         5
described in the jury instructions, but by the statutes creating the offense."

Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citing Lawton v.

Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011)). In other words, the only

relevant consideration is whether, under the evidence as a whole, it would be

clearly unreasonable for a jury to find Kingdon committed first-degree wanton

endangerment according to the statutory elements of that crime. 3

      Kentucky Revised Statute (KRS) 508.060 provides: "A person is guilty of

wanton endangerment in the first degree when, under circumstances

manifesting extreme indifference to the value of human life, he wantonly

engages in conduct which creates a substantial danger of death or serious

physical injury to another person." As for the evidence put on by the

Commonwealth at trial, it is of note that the entire crime was captured on

video. Because this video is the best evidence of what transpired we describe

its contents in detail as they relate to the first-degree wanton endangerment

charge.

      Four cameras were mounted inside the TARC bus. Two cameras

captured the shooting: one viewing the back of the bus from the front and the

second viewing the back of the bus from its mid-point. Because the shooting

occurred at the back of the bus, the mid-point video offers the more detailed

depiction; thus we focus our attention on it. In the description below, we set

forth directions from the point of view of the mid-point camera.



      3 We note that Kingdon has not raised any argument with regard to the first-
degree wanton endangerment jury instruction. Therefore, we do not review its validity.

                                          6
      The back bench of the bus has five seats. The shooting victim, Robinson,

is seated on the left side of the back bench of the bus leaning against the

window. Luckett, who was approximately 13 years old at the time of the

shooting, is seated on the right side of the back bench. There are three vacant

seats on the bench between Luckett and Robinson. Benches with two seats

each are located on each side of the bus in front of Robinson and Luckett. The

aisle of the bus runs between those two benches and ends at the middle seat

on the back bench. Therefore, in order to reach the aisle, Robinson and

Luckett were required to move toward the middle seat on the back bench.

      The relevant portion of the video begins with Keehn walking down the

aisle of the bus to the back bench. Keehn stops directly in front of the back

bench's middle seat and begins arguing with Robinson. Kingdon immediately

follows Keehn to the back of the bus and stands in the aisle to the right of and

behind Keehn. Kingdon, who is standing between Luckett and the aisle, also

begins to argue with Robinson. Approximately 10 seconds later, Dowell walks

down the aisle and joins Keehn and. Kingdon. Dowell stops to the left and front

of Keehn. The argument rapidly escalates, with all of the participants angrily

gesturing. Kingdon then reaches into his pocket and pulls out a handgun. He

holds the gun at his side in his right hand, which is within approximately two

feet of Luckett's head. Luckett, who testified that she saw the gun and feared

for her life, gets up from her seat and begins to push her way through Kingdon,

Keehn, and Dowell, who are blocking her only path to the aisle. Because she is

short, Luckett gets lost in the picture for a second or two as she tries to push


                                         7
her way between Kingdon's right side and the back bench. Kingdon appears to

use his left hand to push Dowell toward the front of the bus, and as Dowell

moves away, Luckett follows her toward the front of the bus. Keehn then turns

and follows Dowell and Luckett. Approximately one second later, and with

Luckett no more than three feet from him, Kingdon raises the gun with his

right hand and shoots Robinson in the head. Kingdon then turns and, still

holding the gun, runs behind Keehn down the aisle and leaves the bus through

the side door. This entire episode, from when Keehn enters the scene until

Kingdon leaves that bus, lasts exactly 30 seconds.

      Viewing this evidence as a whole and in the light most favorable to the

Commonwealth and comparing it to the statutory elements above, it would not

be clearly unreasonable for a jury to find Kingdon wantonly endangered

Luckett. Kingdon brought a loaded gun on a public bus and engaged in a

heated argument with Robinson. He then pulled out the gun within arm's

length of where Luckett, a teenager, was sitting and held it in hiss right hand

while he continued to shout and angrily gesture with his left hand. While

engaged in this argument, Kingdon blocked Luckett's only means of escape,

forcing her to physically push against him and between him and Robinson, his

intended target. While being jostled by Luckett, as well as by Keehn and

Dowell, in a space of approximately one square foot, Kingdon continued to hold

a loaded gun within inches of Luckett and pointed at her feet. Kingdon then

fired that gun approximately one second after Luckett passed between him and




                                         8
Robinson, when she was within three feet of him. Finally, Kingdon, gun in

hand, ran down the aisle with only a few feet separating him and Luckett.

      Viewing Kingdon's conduct in its entirety and in the light most favorable

to the Commonwealth, there is sufficient evidence that Kingdon wantonly

created a substantial risk of death or serious physical injury to Luckett.

Therefore, the trial court did not abuse its discretion when it denied Kingdon's

motion for directed verdict. Consequently, we affirm Kingdon's first-degree

wanton endangerment conviction.

C. Kingdon was entitled to a directed verdict on the charge of tampering
   with physical evidence.

      Kingdon contends that he was entitled to a directed verdict on the charge

of tampering with physical evidence. The charge was premised on the theory

that Kingdon disposed of the weapon used in the shooting of Robinson. To be

guilty of tampering with physical evidence under KRS 524.100, the

Commonwealth must prove that Kingdon "destroy[ed], mutilate[d], conceal[ed],

remove[d] or alter[ed] 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."

      Kingdon argues the trial court should have directed a verdict of acquittal

on that charge because no evidence was presented to show he disposed of,

concealed, or destroyed the murder weapon. As noted in the previous section

of this opinion, a directed verdict is necessary when, under the evidence as a

whole, it would be clearly unreasonable for a jury to find guilt.   Allen, 395

S.W.3d at 456.

                                            9
      The evidence at trial indicated that immediately after the shooting

Kingdon fled from the bus with the gun in his hand. Although police officers

looked for the gun in Kingdon's apartment and in his automobile, they failed to

locate it. The Commonwealth surmised that because police were unable to

locate the gun, Kingdon must have destroyed, concealed, or disposed of it so

that it could not be used as evidence against him in a subsequent prosecution.

Such an inference, without more evidence, does not support a reasonable

finding of guilt.

       In Mullins v. Commonwealth, the defendant shot the victim and

immediately left the scene with the weapon in his possession, but law

enforcement officers failed to locate the gun. 350 S.W.3d 434, 436-37 (Ky.

2011). We explained that "walking away from the scene with the gun is not

enough to support a tampering charge without evidence of some additional act

demonstrating an intent to conceal." Id. at 442. We reiterated the same point

in McAtee v. Commonwealth: "merely leaving the scene with the murder weapon

was insufficient evidence from which a reasonable jury could fairly find

Appellant guilty of tampering with physical evidence." 413 S.W.3d 608, 617

(Ky. 2013).

      The Commonwealth's theory leads to the paradoxical situation in which

the complete lack of evidence concerning the gun becomes sufficient "evidence"

to prove that Kingdon destroyed it, concealed it, or otherwise disposed of it.

The theory is fundamentally flawed because it unconstitutionally shifts the

burden to the defendant to prove his innocence.


                                        10 -
      "The Commonwealth has the burden of proving every element of the case

beyond a reasonable doubt(.]" KRS 500.070. "Due process commands that no

man shall lose his liberty unless the Government has borne the burden of

producing the evidence and convincing the factfinder of his guilt."      Speiser v.

Randall, 357 U.S. 513, 526 (1958) (citation omitted). If the Commonwealth's

inability to explain what happened to the weapon sufficiently established a

prima facie case of tampering with physical evidence, then the defendant could

be found guilty unless he provided evidence to prove he had not "destroyed,

concealed, or disposed of" it. Our system works on the opposite premise: the

state must present evidence of guilt; the defendant is not required to produce

evidence of his innocence.

      The fact that the police failed to find the gun does not suffice to prove

that Kingdon illegally tampered with it. Since there was no evidence to show

that Kingdon tampered with the weapon by concealing, destroying, or disposing

of it, a directed verdict should have been entered on the charge of tampering

with physical evidence. We reverse Kingdon's conviction on that charge.

D. The initial-aggressor qualification of the self-protection instruction was
   properly included in the jury instructions.

      Finally, Kingdon argues that the trial court erred by instructing the jury

that Kingdon's right to act in self-defense was qualified if he was the initial-

aggressor in his confrontation with Robinson, or if he provoked Robinson's use

of force. 4 RCr 9.54(1) places a duty on the trial court "to instruct the jury in



      4 The provocation instruction is grounded in KRS 503.060(2), while the initial-

aggressor instruction is grounded in KRS 503.060(3). Although Kingdon asserts error

                                          11
writing on the law of the case." The trial court must "instruct the jury on every

theory of the case that is reasonably deducible from the evidence."           Fredline v.

Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (citing Manning v.

Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000)). Kingdon contends that the

evidence at trial did not support the giving of the initial-aggressor instruction.

We review the trial court's decision to give or not give an instruction pursuant

to the abuse of discretion standard.       Sargent v. Shaffer, 467 S.W.3d 198, 203

(Ky. 2015) (allegations of instructional error based upon the claim that the trial

court gave an instruction that was not sufficiently supported by the evidence).

       The right to act in self-protection is not absolute. Pursuant to KRS

503.060(3), a defendant's use of physical force is not justifiable when he was

the initial aggressor, "except . . . when: (a) His initial 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." A person who initiates a

violent physical confrontation against another person and then injures that

person cannot avoid culpability by claiming self-defense, unless his initial

aggression was nondeadly and the other person elevated the conflict by

responding with deadly force. 5

       A jury instruction on the initial-aggressor qualification is appropriate

when the evidence supports the belief that the defendant, who claims to have


in giving the provocation instruction, he does not provide a specific argument to
support it. In this case, the evidence that justified the initial-aggressor instruction
would also authorize the provocation instruction.
       5 KRS 503.060 is structured to avoid the conundrum in which both parties to a
violent confrontation are justified to act in self-protection against each other.

                                             12
acted in self-protection, is the one who initiated the confrontation. Kingdon

was clearly entitled to have the jury instructed on the right to act in self-

protection because the jury heard evidence that Kingdon did not raise his gun

until he believed that Robinson was reaching for a gun. But the jury also

heard testimony that Kingdon pursued Robinson by chasing and boarding the

bus so that he could confront Robinson with a loaded gun and recover money

Robinson stole. Even if Kingdon believed that Robinson was reaching for a

gun, the foregoing testimony and the surveillance videos of the shooting

provided sufficient evidence for the jury to reasonably find that Kingdon was

the initial aggressor. The Commonwealth was entitled to have that theory

presented in the jury instructions; thus, the trial court did not abuse its

discretion in giving the initial-aggressor instruction.

                                  III. CONCLUSION

      For the foregoing reasons, the judgment of the Jefferson Circuit Court in

this matter is affirmed in part and reversed in part. Kingdon's murder and

wanton endangerment convictions are affirmed. However, the conviction for

tampering with physical evidence is reversed, and this case is remanded to the

Jefferson Circuit Court for entry of a directed verdict of acquittal on that

charge.

      All sitting. Minton, C.J., Cunningham, Hughes and Keller, JJ., concur.

Venters, J. concurs in part and dissents in part by separate opinion in which

Noble and Wright, JJ., join.




                                         13
      VENTERS, J., CONCURS IN PART AND DISSENTS IN PART: Although I

fully concur with the Majority's decision to affirm Kingdon's murder conviction,

I respectfully disagree with its conclusion that he was properly convicted of

wanton endangerment. The Majority upholds Kingdon's conviction for wanton

endangerment based upon its own theory of guilt, a theory which was neither

charged by the Commonwealth nor presented to the jury in the jury

instructions and, therefore, cannot possibly support the jury's verdict.

Kingdon's one-year sentence for wanton endangerment is an almost negligible

addition to his twenty-five year murder sentence, but our distortion of what

constitutes the crime of wanton endangerment is far from negligible.

      In the indictment brought by the Commonwealth and throughout the

Commonwealth's case, all the way through the trial court's instructions and

the closing arguments, the only theory of wanton endangerment proffered by

the Commonwealth was that Kingdon endangered Luckett by moving his gun

from his waistband to his right hand and holding it down by his side a few feet

away from Luckett. The video evidence proved that while Robinson and

Luckett sat on the rear seat of the bus, Kingdon stood in front of Robinson,

surreptitiously lifting his pistol from his waistband and held it motionless by

the side of his leg aimed at the floor. It was only after Luckett rose from her

seat, passed between Appellant and Robinson, and then walked away from

Appellant to the front of the bus, that Appellant abruptly raised the gun and

shot Robinson. By that time, Luckett was behind Appellant, toward the front

of the bus, in the opposite direction of the line of fire and well-removed from


                                        14
the danger posed by the shooting of the gun. Consistent with the indictment

and the Commonwealth's theory of the case, the jury instructions plainly

limited the jury to considering only Kingdon's act of holding the gun near

Luckett, conduct that could not be reasonably construed as "creat[ing] a

substantial danger of death or serious physical injury to [Luckett]" under KRS

508.060(1).

       The Majority, however, vaguely recasts the charge and expands the

temporal scope of the crime to encompass everything from Kingdon's conduct

of bringing a loaded gun onto a public bus to his final act of firing the gun and

running away. Most likely, the Commonwealth did not pursue that theory of

guilt, and the trial court did not instruct on that theory, because both

recognized that a wanton endangerment charge could not be based upon

Kingdon's act of getting on a bus with a loaded gun because carrying a loaded

gun, even in public, is not in and of itself wanton behavior. 6 Most likely, they

also recognized that Kingdon's act of firing the gun could not support the

wanton endangerment charge because they understood the fact that Luckett

was out of harm's way in the opposite direction when the gun was fired.

       We have held that the crime of wanton endangerment can be established

by evidence of firing a gun "right beside," "point blank," and "within 15 feet" of

a victim. Combs v. Commonwealth, 652 S.W.2d 859, 860 (Ky. 1983). We have




       6 Far from being a wanton act, carrying a loaded gun in public can qualify as a
constitutionally protected activity.

                                           15
never until now held that holding a gun in close proximity to another person is

wanton endangerment.

      We have said that shots fired blindly through a door of an occupied home

will support a first-degree wanton endangerment conviction.     Paulley v.

Commonwealth, 323 S.W.3d 715, 724 (Ky. 2010). In contrast, we have held

first-degree wanton endangerment was not established by evidence that

gunshots were fired into the ceiling and fireplace of a room down the hall from

the alleged victim. Swan v. Commonwealth, 384 S.W.3d 77, 103-104 (Ky.

2012). We reached that conclusion because there was no evidence that a

bullet was fired in the direction of the alleged victim, nor was a gun pointed at

the alleged victim. Id. at 103. Even if shooting the gun were the gravamen of

the crime charged by the Commonwealth, we have never until now held that a

bystander could be wantonly endangered by a shot fired in the opposite

direction, 180-degrees away from her,

      Unlike Combs, Paulley, or Swan, the factual issue of this case is not

whether Luckett was endangered by Appellant firing his gun. The crime as

charged by the state was limited to Appellant's handling of the gun near

Luckett. As the crime is defined in KRS 508.060(1) and clarified by precedent,

the act of holding a gun at one's side is not an act that "manifest[s] extreme

indifference to the value of human life" or wantonly "creates a substantial

danger of death or serious physical injury to another person." Appellant was

entitled to a directed verdict on the first-degree wanton endangerment charge.

      Noble and Wright, JJ., join this opinion.


                                        16
COUNSEL FOR APPELLANT:

Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General
Office of Criminal Appeals




                                17
