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                                2016-SC-000292-MR         [5) IA~ [E ii O)i&,J tJ J.2,~ '4J_"'°,,, De
 DENNIS SILLS                                                                APPELLANT



                  ON APPEAL FROM CHRISTIAN CIRCUIT COURT
 v.                  HONORABLE ANDREW C. SELF, JUDGE
                              NO. 13-CR-00675


 COMMONWEALTH OF KENTUCKY                                                    APPELLEE



                    MEMORANDUM OPINION OF THE COURT

                                     AFFIRMING

       A Christian Count.Y jury found Dennis Sills guilty of murder. Consistent

 with the jury's sentencing recommendations, the trial court fixed his sentence

 at thirty-five years' imprisonment.

       ·Sills now appeals as a matter of right, Kentucky Constitution§ l 10(2)(b),

 arguing .that the trial court erred by admitting improper evidence of his prior

· bad acts. For the reasons set forth below, we affirm the trial court ...

                                   I. BACKGROUND

       Dennis Sills and Lisa Roach began dating in 2009. After about a year

 together, the two began to fight, and their relationship was on-again-off-again.
   .                                                                     .
.Over the_ next three years, Sills physically abused Roach and stated on multiple

occasions that he would kill her. In August 2013, Roach fled the Hopkinsville
          I   ,




      .                    .             '

mobile home that she and her two children shared with Sills and moved to

Mississippi. Two months later, on October 11, 2013, she returned in order to

transfer          ~itle   of property that remained in Kentucky. That night, Sills's
 ·~




neighbor, Phillis Gardner, heard Sills yell, "I need your help, Miss Phillis. I

need you, you've got to help me!" When she went to his mobile home and

asked hirri wh.at was wrong, he replied,'"I've done shot Lisa."

              Gardner testified that when she and. her daughter arrived at Sills's

mobile home, Sills told them, "Well, she bit me," and showed the women                 a bite
mark on his chest and a bloody bite· mark on his wrist. Gardner approached'

·Sills's front door, where she saw Lisa Roach's body lying on the-floor. Gardner

told her daughter to call 911. While waiting for emergency services, Sills

admitted to Gardner and her. daughter that he shot Roach with his rifle. Sills

also left multiple messages on his employer's answering machine admitting

that he had killed Roach. When police arrived; they fo1:1nd Roach dead with

bullet wounds to the back of her head, her chest, and her right flank. Upon

searching the mobile home, police found a .22 caliber rifle and two .22 caliber

"spent" shell casings. This was the weapon determined to have been used by

Sills to shoot Roach. No other weapons were discovered at the scene. Sills was

charged with murder, and these proceedings commenced. We set forth

additional facts as necessary below.




                                                   2
                                           II. ANALYSIS

. A. The trial court did not err by admitting evidence of Sills's prior .
     instances of domestic violence.

         Prior to trial, the Commonwealth provided notice to Sills's counsel,

pursuant to Kentucky Rule of Evidence (KRE) 404(c), that it intended to

introduce KRE 404(b) evidence of other crimes, wrongs, and acts. KRE 404(b)

provides, in pertinent part:

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

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

At a pretrial conference,
                .      .
                          Sills objected to all of the Commonwealth's
                                                              .       KRE 404(b)

evidence, and the trial court overruled that objection. We review the trial

court's application of KRE 404(b) for an abuse of discretion. Driver v.

Commonwealth, 361S.W.3d877, 883 (Ky. 2012).

         The Commonwealth introduced evidence at trial that, at some· time

during their relationship--which began in 2009 and e:qded in .2013-Sills:

grabbed Roach by the arm, leaving bruises; 1 grabbed her by the throat; broke a

beer bottle on a table in front of Roach to scare her; tripped Roach and v~rbally

abused her; and jumped on Roach, while holding a gun to her head. Sills

argues, based on this Court's decision in Barnes v. Commonwealth, 794 S.W.2d




         1   At trial, only this instance was dated, having occurred on New Year's Eve,
2010..                                   .
                                               3
 165 (Ky. 1990), that the trial court's decision to admit the preceding evidence

 was in error.

       In Barnes, this Court held that the trial court erred by admitting

 evidence that the defendant had hit his wife_ seven years before killing her, and.

 had grab bed her and dragged her down an alley four years before killing her'.

 Id. at 169 .. There, we reasoned that "[a]cts of physical violence, remote in time,

 prove little with regard to intent, motive, plan or scheme; have little relevance

. other than establishment of a general disposition to commit such acts; and the

 prejudice far outweighs any probative value in such evidence." Id. The present

 matter is distinguishable from Barnes. As we noted in Driver; "Barnes does not

 suggest that there is any demarcation point by which remoteness is to be

judged." 361 S.W.3d at 884. Thus, the fact that Sills's prior acts    occurre~

 sometime during the four years before he murdered Roach is not dispositive.

       In order for evidence to be admissible at trial, it must be relevant. KRE

 402. Evidence is relevant if it has "any tendency to make the existence of any

 fact that is of consequence to the determination bf the action more probable or

 less probable than it would be without the evidence." KRE 401. "Although

 relevant, evidence may be excluded if its probative value is substantially

 outweighed by the danger of undue prejudice .... " KRE 403. Sills's and

 Roach's entire relationship lasted four years, and the abusive behavior

 occurred throughout the last three years of their relationship. Sills's defense
                                                           .                  .
was that he acted iri self-defense. Evidence of his abuse of Roach was, thus,

relevant to show intent and that he did not act in self-defense. Because these

                                         4
acts of abuse occurred relatively close in time to the murder, and at least one

_involved threatening use of a gun, we carinot say, as a matter of law, that the

prejudicial effect outweighed the evidence's probative value. Therefore,we hold

that the trial court's admission_ of evidence. of Sills's prior instances of domestic

violence was not erroneous.

B. The ·trial court did not err by admitting evidence of threats Sills made
   to Roach.          ·

       In addition to the above-noted instances of domestic violence, the

Commonwealth elicited testimony that Sills, had threatened to kill Roach on

numerous occasions. At a New Year's Eve party in 2010, Sills stated.that, "One_

day, I'm going to have to kill that bitch." Roach's son testified that he heard

Sills tell his mother, "I'm going to have to kill you one day." In another

instance, Sills told Roach that he would kill her ifshe ever left him.

       "Generally, evidence of prio! threats and animosity of the defendant

against the victim is admissible as evidence of motive, intent or identity.~ ... "

Davis v. Common1:1Jealth, 147 S.W.3d 709, 722 (Ky. 2004). "It has long been a

rule in this jurisdiction tha~ 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). We noted above ·that Sills

claimed that he acted in self-defense. As with evidence of physical abuse,

evidence of Sills's prior threats demonstrated intent and was relevant to      refut~

his claim of self-defense .. An analysis ur:ider_ KRE 404(b) "will be left to the trial
         '
court's sound discretion depending upon the facts of the individual case."
 Driver, 361 S.W.3d at 884. We discern no abuse of that discretion, and hold

 that the trial court's ruling was
                                 /,
                                    not in error.

                                    III. CONCLUSION

      . For the foregoing reasons, the judgment of the Christian Circuit Court in

 this matter is affirmed;

       All sitting. All concur.




 COUNSEL FOR APPELLANT:

  Robert Chung-Hua Yang
 ·Assistant Public Advocate
· Department of Pliblic Advocacy


 COUNS~L     FOR APPELLEE:

 Andy Beshear
 Attorney General of Kentucky

 Micah Brandon Roberts
 Assistant Attorney General




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