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                                              RENDERED: FEBRUARY 18, 2016
                                                     NOT TO BE PUBLISH-ED

               ,inprrtur trurf.
                              2015-SC-000226-MR       uu                          1


                                                                    op.tahaidokbao .
WENDELL K. DIXON                                                      APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                HONORABLE THOMAS L. CLARK, JUDGE
                            NO. 13-CR-01124


COMMONWEALTH OF KENTUCKY                                              APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

                                I. BACKGROUND

      Appellant, Wendell K. Dixon, and April Ballentine had dated and lived

together for approximately five years before she ended their relationship. On

the evening of their breakup, Appellant assaulted Ballentine. According to

Keith Martin, an acquaintance of the couple, Appellant threatened killing

Ballentine at least three times in the following weeks. Approximately two

months later, Appellant shot Ballentine multiple times, causing severe injuries

necessitating the use of life-saving measure by emergency responders.

Ballentine's spinal cord was severed and she was paralyzed from the

breastbone down. It is unlikely she will ever walk again.

      A Fayette Circuit Court jury ultimately convicted Appellant of one count

of first-degree assault and two counts of first-degree wanton endangerment.

The trial court imposed a sentence of twenty-eight years' imprisonment.
Appellant now appeals as a matter of right, Ky. Const. § 110(2)(b), arguing the

trial court erred in: (1) striking two impartial jurors for cause and (2) admitting

irrelevant and unduly prejudicial KRE 404(b) evidence of prior bad acts.


                                   II. ANALYSIS

   A. Jurors

      Appellant first alleges the trial court erred in granting the

Commonwealth's motions to strike two jurors for cause. He insists the two

jurors were impartial. Both parties agree Appellant's trial counsel properly

preserved this issue as to one of the jurors, but disagree on the issue of

preservation as to the other. We find it unnecessary to address the issue of

preservation, as it does not affect our holding. For the reasons that follow, we

affirm the trial court.

      "This Court has long recognized that la] determination as to whether to

exclude a juror for cause lies within the sound discretion of the trial court, and

unless the action of the trial court is an abuse of discretion or is clearly

erroneous, an appellate court will not reverse the trial court's determination."'

Pendleton v. Commonwealth, 83 S.W.3d 522, 527 (Ky. 2002), quoting Sholler v.

Commonwealth, 969 S.W.2d 706, 708 (1998). Therefore, we will analyze

whether the trial court abused its discretion in striking these two jurors. "The

test for abuse of discretion is whether the trial judge's decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles."

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).




                                          2
       Section 11 of the Kentucky Constitution and the Sixth and Fourteenth

Amendments to the United States Constitution guarantee the right to an

impartial jury. Kentucky Rules of Criminal Procedure 9.36(1) provides in

pertinent part: "[w]hen there is reasonable ground to believe that a prospective

juror cannot render a fair and impartial verdict on the evidence, that juror

shall be excused as not qualified." We have held that a trial court must

"determine the credibility of the juror's answers based on the entirety of the

juror's responses and demeanor." Allen v. Commonwealth, 276 S.W.3d 768,

772 (Ky. 2008). In so doing, "The trial court has the duty to evaluate the

answers of prospective jurors in context and in light of the juror's knowledge of

the facts and understanding of the law." Stopher v. Commonwealth, 57 S.W.3d

787, 797 (Ky. 2001).

      In the case at bar, Appellant's defense was never that he did not shoot

his ex-girlfriend. Rather, Appellant's counsel indicated during voir dire that

Appellant was suffering from depression at the time he shot Ballentine. That

prompted defense counsel to ask the jury panel if any of them had experience

with severe depression and four of the prospective jurors raised their hands in

response. Of the four, the Commonwealth moved to strike two, and the trial

court granted those motions.

      At the time of trial, Juror 4081 was undergoing treatment for depression

including counseling and medication. In the distant past, both Juror 4081 and

his aunt had been hospitalized due to depression. Moreover, this juror

indicated that depression "definitely" played a role in his older sister's death
years earlier. Juror 4081 stated that "I would not excuse somebody because of

depression or anxiety, but I would also not think down upon him or her, or

whatever." Since Appellant's defense was based on his alleged depression

following his and Ballentine's breakup, the Commonwealth moved to have

Juror 4081 stricken for cause due to his long personal and family history with

depression, opining it may cause him to be biased toward Appellant's defense.

      Juror 4371 also raised his hand when defense counsel asked the panel

about experience with severe depression. He indicated his wife had dealt with

depression and anxiety for thirty-five years and had been on medication for

these conditions. When defense counsel asked Juror 4371 if, in light of his

wife's situation, he could be fair if any evidence of depression were introduced

during trial, he responded that he did not know if it would affect him. Later,

when the prosecutor asked if his experience would cause him to be

sympathetic toward the defendant, he responded, "I really don't know if that

would sway my, you know, my, to be honest, I don't know if it would sway me

at all." Juror 4371 further stated he was not sure if his wife's depression

would cause him to go lighter on the penalty phase. The Commonwealth

moved to have Juror 4371 stricken for cause due to these responses.

      Appellant argues that the trial court abused its discretion in striking the

aforementioned jurors, as nothing in either juror's responses suggested they

could not conform their views to the requirements of the law in order to render

an impartial verdict. See Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky.

1994). We disagree. We reiterate that we will not substitute our judgment for

                                        4
that of the trial court in the absence of an abuse of discretion, as the trial court

was in the best position to evaluate the jurors' complete responses and

demeanor. Given the jurors' responses to questions concerning depression and

given the fact that Appellant's defense centered around his depression, we

cannot hold that the trial court's decision to strike these jurors for cause was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Therefore, we affirm the trial court on this issue.

   B. Evidence of other crimes, wrongs, or acts

      Next, Appellant argues the trial court committed reversible error when it

admitted KRE 404(b) evidence of other crimes, wrongs, or acts. Specifically,

Ballentine testified that the day she broke up with Appellant, he grabbed her

head and pushed her out the front door of his brother's home, kicked her in

the back, bruised her forehead, and pulled out her hair. Keith Martin (who

attended church with Appellant and Ballentine and had known Ballentine for

years) also testified that Appellant communicated threats against Ballentine to

him. Martin testified that Appellant told him a week after the breakup that he

"ought to kill that bitch." Martin testified that he saw Appellant again a couple

of weeks later and Appellant told him he might have to serve six months on the

charges pursuant to his assault on Ballentine on the night of their breakup.

Martin testified that Appellant stated he would "kill that bitch." Martin further

stated he saw Appellant again a week later and he again indicated that he

"should kill that bitch" and added "it's fucked up that [I'm] locked up."




                                         5
      Kentucky Rules of Evidence 404 deals with character evidence and

evidence of other crimes. More specifically, KRE 404(b) provides:

      (b) Other crimes, wrongs, or acts. Evidence of other crimes,
      wrongs, or acts is not admissible to prove the character of a person
      in order to show action in conformity therewith. It may, however,
      be admissible:

            (1) If offered for some other purpose, such as proof of
            motive, opportunity, intent, preparation, plan,
            knowledge, identity, or absence of mistake or accident;
            or

            (2) If so inextricably intertwined with other evidence
            essential to the case that separation of the two (2)
            could not be accomplished without serious adverse
            effect on the offering party.

In Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994), this Court stated

"trial courts must apply the rule cautiously, with an eye towards eliminating

evidence which is relevant only as proof of an accused's propensity to commit a

certain type of crime." However, this Court has ruled on numerous occasions

that "similar acts perpetrated against the same victim are almost always

admissible" to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Price v. Commonwealth, 31 S.W.3d

885, 888 n. 4 (2000). Our first step in analyzing whether KRE 404(b) evidence

was properly admitted is to determine whether it fell within one of these

recognized exceptions to the exclusionary rule.

      "Mt has long been a rule in this jurisdiction that threats against the

victim of a crime are probative of the defendant's motive and intent to commit

the crime . . . ." Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004). This

Court has further held that any contention that evidence should be excluded of
                                        6
prior assaults perpetrated by the defendant against the victim "would border

on absurdity." Smith v. Commonwealth, 904 S.W.2d 220, 224 (Ky. 1995).

      Here, Appellant did not deny that he shot Ballentine. However,

Appellant's mental state was at issue, as he requested and received a jury

instruction on Assault under Extreme Emotional Disturbance (EED). In order

for an EED claim to succeed, the jury must believe "[t]he defendant [was] both

extremely emotionally disturbed and acting under that emotional influence;

and there [was] an identifiable 'triggering event' which resulted in the emotional

disturbance." Driver v. Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012), citing

Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2000). The evidence of

Appellant's prior assault on Ballentine and of his threats against her were

certainly relevant given the nature of Appellant's defense. His history with the

victim and the threats he made against her life showed his motive and intent to

commit the crime and tended to disprove his defense that he acted under the

emotional influence of his breakup with Ballentine. This evidence was not

admitted merely to show that Appellant had a propensity to commit the type of

crimes with which he was charged.

      Thus, we hold that the trial court did not err in admitting evidence of

Appellant's other crimes, wrongs, or acts.


                                 III. CONCLUSION

      For the foregoing reasons, we affirm Appellant's convictions and

corresponding sentences.

      All sitting. All concur.

                                        7
COUNSEL FOR APPELLANT:

Samuel N. Potter, Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Be shear, Attorney General of Kentucky

Jeffrey Ray Prather, Attorney General Special Prosecutions
