                                                   ·RENDERED: SEPTEMBER 28, 2017
                                                                TO BE PUBLISHED

                    ~upr:em:e ~nurf                 nf Ii:enfurku
                                      2016-SC-000021-MR
                                         ;




     JOHN FAIRLEY III                                                        APPELLANT


                     ON APPEAL FROM CHRISTIAN CIRCUIT COURT
     v.                 HONORABLE ANDREW C. SELF, JUDGE
                                 NO. 14-CR-00551


.·COMMONWEALTH OF KENTUCKY                                                    APPELLEE

                                  .                       .
                    OPINION OF THE COURT BY JUSTICE HUGHES

                                        . AFFIRMING

           John Fairley III appeals as a matter of right from a judgment of the

     Christian Circuit Court sentencing him to twenty years' imprisonment for· first-
 .                                             I

     degree robbery, receiving stolen property (firearm), first-degree   pos~ession   of a
                             I


     controlled substance (while armed), and possession of marijuana (while armed).

     Fairley alleges that the trial co.urt erred by permitting the victim to. make an in-

     court identification and by refusing to give an instruction 'for the lesser-

     included offense of facilitation to first-degree robbery. Fairley also raises two

. unpreserved errors: 1) that his conviction for receiving stolen property based on

     a stolen handgun was manifestly unjust and 2) that the Commonwealth's

     Attorney improperly questioned him about a prior assault. For the following

     reasons, we affirm the judgment and sentence.
                     FACTS AND PROCEDURAL HISTORY

      On September 2, 2014, Charles "Bird Dog" Page left his home to visit his.

brother, Earl, in Hopkinsville, Kentucky. While walking to Earl's residence,

Page observed a maroon colored vehicle, which for some unspecified reason he

found suspicious: Page watched the vehicle pull into a parking lot and he

continued on his way to his brother's home. Upon reaching Earl's residence,

Page realized that he had forgotte.n his key. As Page left to meet his brother to

get a key to the house, he once again saw the maroon car.

      Concerned about the maroon car's reappearance, Page hitched a ride

with two African-American men in a ~lue car: After driving for some time, the

driver turned down   an alley.·   .Subsequently, the passenger in the front
                                                                       .
                                                                            seat

(later identified by Page as Fairley) pointed a handgun at Page and commanded

"Give me your money." Page fled the vehicle and ran towards a law office.

Fairley ·gave chase and struck Page in the back of the head with    hi~   pistol.

Page then began to yell for help.

      Hearing the disturbance, Lucius Ha:wes, exited his law office and saw

both men. Hawes observed.an African-American man with dreadlocks-, dressed
                                                                                    (

in dark clothing, and carrying a large semi-automatic pistol, fleeing the scene

headed in the. direction of Clay Street. . Subsequently, Hawes provided aid to

Page, whose head wound was bleeding profusely.

      Emergency services were contacted and shortly thereafter an ambulance
           .                      .                                         .
arrived to treat Page. While receiving medical treatment, Page informed

Emergency Technician Nicholas Marlow that two African-American men had

                                           2
 assaulted him with a pistol.· Page was initially treated   at~   local hospital, but

 was later medically evacuated by helicopter to a hospital in Tennessee. Page's

 injuries included a severe laceration and a broken nose. Later, when

 interviewed. by the police, Page explained that the person who struck him had

 also ·stolen money from him.

       During the resulting police investigation, investigators received tips

 which suggested Fairley's involvement in the robbery. Police also learned that
                                                                                        I
. at the time of the robbery Fairley had been wearing a GPS ankle monitor as

 part of a. court-ordered home incarceration. According to the monitoring

 company, Fairley's monitoring device was registered as being near Hawes's
            '\
· office and moving- away from that location towards Clay Street at the time of

 the robbery.

       The police interviewed Fairley.on September 3, 2014, at which time he

 claimed to have been driving a red car on the day of the robbery. He noted that

 he was away from his home that day as he was submitting an employment

 application. The following day, September 4, 2014, police using GPS tracking

 located Fairley sitting alone in the back seat of a white vehicle parked in a

 vacant lot. On top of the transmission tunnel in the rear of the vehicle,

 approximately
    .
               a foot away from Fairley, .was a firearm which police later

 learned had previously been reported stolen. Alsq in.the vacant lot was a blue

 Malibu vehicle which was registered to Fairley's mother.



                                                                   .   (




                                         3
       After .Fairley's arrest 1 he was again interviewed by the police about the

Page robbery. In his   s~cond   interview, Fairley initially claimed that he had

been at his home during the time of the robbery. However, later in the

interview, he stated that he had witnessed someone attacking Page and he gave

that person a ride away from the are.a.

      A later search of the blue Malibu pursuant to a warrant led to the

recovery of quantities of cocaine and marijuana ..Additionally, during a search

of Fairley's home, police recovered a pair of socks which appeared to have

blood stains on them. Subsequent forensic testing established the presence of

blood on the passenger's side door handle of the blue Malibu, the firearm, and

the socks. The DNA profile for those blood stains was a match for Page at all

loci, with an estimated frequency of one in ninety-nine quintillion based op the

relevant Uriited States population. ·

      In September 2015, Fairley was tried . by the Christian
                                                            . Circuit Court and

found guilty of first-degree robbery, receiving stolen property (firearm), first-

degree possession of a controlled substance (while armed), and possession of

marijuana (while armed). The jury recommended the maximum penalty for

each offense, but recommended that those sentences be served concurrently

for a total sentence of twenty years' imprisonment. The trial court sentenced

Fairley in conformance with the jury's recommendation.




      I It appears Fairley was arrested due to violation of court-ordered conditions
attached to his release on home incarceration.            ·

                                           4
I. The Trial Court Properly Permitted the Victim to Make an In-Court ·
   Identification of Fairley.                    ·         ·

       Fairley argues that the trial court erred by permitting Page to .make an

in-court identification. Specifically, Fairley contends that as Page was unable

to identify him in a photographic lineup, that he should have been b8:rred from

making an in-court identification.2 Alternatively, Fairley request; that the

Court remand this case for a hearing to assess whether the in-court

identification satisfies the.factots·set forth in Neil v .. Biggers, 409 U.S. 188, 93

S. Ct. 375 (1972). We reject both arguments.
                     r                            .
       After Fairley was apprehended,       De~ective   Green showed Page a

photographic lineup; but he· was unable to identify Fairley as the perpetrator.

However, prior to trial, Page informed the prosecutor that he would be able to

identify Fairley. At'a pretrial conference heid in September 2015, the

prosecutor informed the- trial court and Fairley of Page's statement. Fairley,

who at that time was functioning as his own counsel, responded by saying "[t]o

me, I feel like that shouldn't be allowed because if he couldn't do it then, how

all of a sudden you can do it now?" The trial court explained that it would not

bar Page from making an in-court identification and that Fairley could cross-

examine him on this issue. During_ the trial, Page identified Fairley as the man

who' robbed him.:. Page explainea that he initially was fearful of identifying



        2 Fairley states that the admission of the in-court identification violated his
right to due process under the Fourteenth Amendment to the United States
Constitution and Section 11 of the Kentucky Constitution.



                                             5
  Fairley. Further; Page was concerned that identifying Fairley would lead to the

  revelation that the stolen mqney had been acquired through         illeg~l   gambling.

  Notably, Fairley did not object to Page's in-court identification, but did. question·

  him about the identification as discussed below.

        While Fairley did not object to Page's in-court identification at trial, we

  conclude that his .objection prior to trial was sufficient to preserve this issue for

  appellate review. Admittedly, this is a close call, but we choose to coristrue

  Fairley's pretrial complaint as   ~n   objection to Page's in-court identification,

  recognizing that pro se litigants should be afforded a degree of latitude in

  making their arguments. See Commonwealth v. Miller, 416 S.W.2d 358, 360

  (Ky. 1967) (explaining that pro se litigants are afforded a different standard .

  than that applied to those with legal counsel). Accordingly, ~e review the trial

  court's decision to admit evidence under an abuse of discretion standard.

\ Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing.Brewer v.

  Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006)). The test for abuse of

  discretion is whether the trial judge's decision was arbitrary, unreasonable,

  unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co.

  v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English,

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

        We reject Fairley's first argument that Page's inability to identify him in a

  photographic lineup should bar him from making an          in-c~urt   identification. ·

 As we have previously explained "the failure of a witness to identify a suspect

 from a photographic line-up does not prevent that witness from later ·

                                              6
identifying a suspect in court." Thompson v. Commonwealth, 2003-SC-0252-

MR, 2004 WL 2624165, 6 (Ky. 2004) (citing United States v. Dobson, 512 F.2d

615, 616 (6th Cir. 1975)); United States v. Briggs, 700 F.2d 408, 413 (7th Cir.

1983)).3 As the United States Court of Appeals for the Sixth Circuit observed:

              The fact that eye witnesses to an occurrence cannot make a
       positive .identification "of an individual from an examination of
       photographs of a number of persons, does not necessarily detract
       from the validity of their in-court identification where they see the
       individual in person. The weight to be given to their in-court
       identification is for the jury to determine.

United States v. Black, 412 F.2d 687, 689 (6th Cir. 1969). See also United·

-States v. De Leon-Quinones, 588 F.3d 748, 755 (lst Cir. 2009) ("To a,llow a

failed identification to always bar a later identification would make little

sense.").·

       We agree that the proper course is to permit the witness to attempt to

identify the suspect in court and, if an identification is made, allow the defense

to thoroughly cross-examine the witness concerning his failure to make a prior

identification. The jury is fully capable of determining what weight to assign to

the in-court identification. In this case, Fairley cross-examined Page regarding

inconsistencies in the description of his assailant to the police and the way that

Fairley appeared at the time of trial as well" as his failure to identify Fairley

pretrial in the photo array. This allowed the jury to decide what weight to give




      3 We cite to Thompson, an unpublished opinion of this Court, as ~e find "no .
published opinion that would· adequately address the issue before the court." CR
76.28(4)(c).                            ·            ·

                                            7
.Page's identification of Fairley. Accordingly, the trial court did not abuse its

discretion in permitting the introduction of this evidence.

       Alternatively, Fairley argues that Page's in-court identification should

have been assessed by the trial court under the factors set forth in Biggers

before Page was allowed to testify. 4 He requests. that this Court remand the

case for an evidentiary hear~ng ..

       In Biggers, the Supreme Court set forth a two-prong due process test for

considering an identification by a witness following-impermissible sugg~stive

pretrial procedures such as a photo array or line-up. In Wilson v.

Commonwealth, 695.S.W.2d 8S4, 857 (Ky. 1985), this . Court summarized the
                                      (


requirements of the Biggers test. First, "[w]hen examining a pretrial

confrontation, thii;; [C]ourt must first determine whether the confrontation

procedures employed by· the1 police were 'suggestive.'" Id. Second, if the Court

determines that those procedures were suggestive, "we must then assess the

possibility that the witness would make an irreparable       misid~ntification,   based

upon the totality [ofj the circumstances and in light of the five factors

enumerated in Biggers." Id .

     . Fairley requests this Court extend Biggers to apply to in-court

iderttifications. In support of this argument, Fairley relies on Kennaugh v.



      4  "The Bi.ggers factors are: (1) the opportunity of the witness to view the
defendant; (2). the witness's degree of attention; (3) t4e accuracy of any prior
descriptions; (4) the level of the witness's certainty when confronting the defendant;
and (5) the time between the crime and the confrontation of the defendant."
Commonwealth l). Parker, 409 S.W.3d 350, 353 ·(Ky. 2013) (citing Savage v . .
Commonwealth, 920 S.W.2d 512, 513-14 (Ky. 1995)).

                                          ·8
   Miller, 289 F.3d 36 (2nd ·cir. 2002). The Kennaugh Court was faced with an

   issue simil~ to that presented in the case at bar - namely a witness· failed to .

   identify the accused prior to. trial after reviewing a line-up and photo arrays,
                               .                 .

   bu.t at trial made an in-court identification. Id. at 39-40. Ultimately, the

   Kennaugh Court concluded that the application of the Biggers test was not

   mandatory for state courts under these circumstances, but that state courts

   were obligated to take actions to ensure that due process requirements were

   respected. Id. at 45-46. The Kennaugh Court also noted that ."the Fourth,

   Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits have held that in-court

  .identification testimony in the absence of a pretrial identification must satisfy
        .                                    .

  ·the Manson [v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (197!)]

  reliability standard, eith~r by meeting the Biggers requi~ements or· in other

  ways." Id. at 47 (citations omitted).s

            However, over the years a significant numper of jurisdictions have

___,·rejected the applicatioi:i of Biggers to in-court identifications .. See, e.g., United

  States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 198.6) (declining to extend

  Biggers to an in-:-court identification, noting that "[t]he Supreme Court has not

  extended its exclusionary rule to in-court identification procedures that are

  suggestive because of the trial setting.");,State v. Lewis, 609 S.E.2d 51S, 518




         s Fairley also cites this Court to Commonwealth _v. Crayton, 21 N.E.3d 157, 169
  (Mass. 2014), in which Massachusetts adopted a new rule mandating that "[w]here an
  eyewitness has not participated before trial in an identification procedure, we shall
  treat the in-court identification as an in-court showup, and shall-admit it in evidence
  only where there is 'good reason' for its admission."

                                                 9
 (S.C. 2005) ("We conclude, as .the majority of courts have, that Neil v. Biggers

 does not apply to in-court identifications and that the remedy for any alleged
                 .                                                  .
 suggestiveness of an in-court identification is cross-examination and·

 argument.").

        Although the relatively recent opinion in Perry v. New Hampshire, 565

 U.S. 228 (2012), did not involve an in-court identification (and thus did not

 settle the debate beyond the requirements of federal due process on the facts

. presented6), it does give strong support for the limitation of Biggers, as well as

 its predecessors and pr9geny, to out-of-cou,rt identifications resulting from

 suggestive circumstances arranged by the police. In Perry, the police were
                                                                       '
 interviewing a woman in her apartment who had witnessed a man breaking

 into cars in the building's parking lot. When asked about the description of the

 man she saw, the woman walked to her kitchen window and pointed to a ma_ri

 standing next to a police officer in the parking lot, indicating he was the rrian.

 Sbe subsequently was unable to identify Perry in        a photo array:   At trial, the·

 woman and the police officer who interviewed her both testified about her

 pretrial "kitchen window" identification.

        Framing the issue presented as "the reliability of an eyewitness

 identification made under suggestive circumstances not arranged- by the




       6  Perry was tried in a New Hampshire state court and raised a federal due
 process argument regarding a pretrial identification. In Perty, the United States
 Supreme Court ac!dressed what the federal Due Process Clause requires in those
 circumstances. States are, of course, free to set their own bar for admissibility of
 pretrial and in-court identifications higher than that set by the Supreme Court.

                                            10
     police,"·Justice Ginsburg, writing for an 8-1 majority, reviewed the line of cases

     beginning with.Stovall v. Denno, 388 U.S. 293 '(1967) and.~tilminatingwith

     Biggers and Manson. 565 U.S. at 236. ·The Court rejected the idea that trial

     judges should "prescreen eyewitness evidence for       reli~bility   any tirrie an .
r.

     identification is made under sugge_stive circumstance's." Id. at 240. The Court

     noted that a primary aim of the. Biggers line of cases was deterrence of law ·

     enforcement's use of improper lineups, shoWups, and photo arrays, a factor

     clearly not present in the case befor~ it. ·Id. at 241. Perry's focus on isolated

     phrases in the· case law regarding the "reliability" of evidence "would open the

     door to judicial preview, under _the   banne~   of due process, of most, if not all

     eyewitnessidentifications." Id. at 243. Pointec:py, the Court observed that

     many eyewitness identifications
                        .
                                     are problematic
                                           .
                                                     for any number of reasons

     including inter alia a witness's poor vision, the stress of the encounter,

     personal grudges and cross-racial perceptions, and most identifications

     procedures "involve some element of suggestion. Indeed, all in-court

     ide~tifications   do." Id. at 244. (emphasis supplied). In refusing to extend

     Biggers, the Perry Court emphasized the safeguards built into our adversary

     system·, including the right to confront the eyewitness through effective counsel

     who can cross..:examine the witness and argue persuasively, eyewitness-specific

     jury instructions, andthe constitutional requirement that guilt be proven
                             .                                                        '·
     beyond a reasonable doubt ..

           Post-Perry, several federal circuit courts have concluded that there is

     nothing impermissibly suggestive about an initial-in-court identification even

                                              11
 when it is obvious that the defendant is the person sitting with counsel at the

 defense table. U.S. v. Morgan, _F.Supp.3d_, 2017 WL 1277419 (D. D.C.

 2017) (collecting cases). See also U.S. v. Hughes, 562 F.Appx. 393, 398 ·(6th

 Cir. 2014) (in-court iden.tification.of only African-American in courtroom was

 not impermissibly suggestive because Perry clarifies that due process rights are

· met through "ordinary protections in trial.") However, in Morgan, the federal·

 district court opted to read Perry as rejecting judicial prescreening of all in-

 court identifications but n.ot changing the concept that some circuits applied

 pre-Perry, i.e., "due process concerns require such screening for an initial in-

 court identification that is equivalent to a one-man showup." 2017 WL at

 1277419 at 3.

       Having- considered Perry and other authorities, we decline to extend ·

 Biggers to in-court identifications. The trial safeguards identified in Perry were

 present and fully utilized here and there i_s no sound basis for requiring a post-

 trial hearing wherein the trial judge would assess the reliability of Page's

 identification of Fairley. 7 We trust that these same s8.feguards will continue to

 protect the· rights of defendants first identified in court, leaving the jury with

 responsibility fqr assessing the credibility of the identification in each case. As.

often noted, throughout Anglo~·American history, "[d]ecisions as to human life;

liberty and public and private property have been r<;>utinely made by jurors and




       1   in: Wilson,
                  this Court held that "it is within the sound discretion of the trial
court to determine whether an independent pretrial line-up is necessary." 695 S.W.2d
at 858. Nothing in today's opinion limits that discretion.

                                          12
 extraordinary confidence has been placed in this decision-making process."

 Curry v. Fireman's Fund Ins. Co., 784 S-.W.2d 176, 1_78 (Ky. 1989).

 II. The Trial Court Properly Instructed the Jury.-

            Fairley further contends that the trial court erred by failing to instruct

 the jury on the lesser-included offense of facilitation to first-degree robbery.

 This   ~rgument     is properly preserved, and we review the trial court's decision

 "not to give a jury instruction . . . for abu~e of discretion." . Hunt v.
        .                    .                               .
 Commonwealth, 304 S.W.3d 15, 31 (Ky. 2010) (citing Williams v.

 Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005)).

            "The trial court "is required to instruct the jury on the 'whole law of the

 case, and this rule requires instructions applicable to         ~very   state of the case

 deducible or supported to ru;iy extent by the testimony."         M~rphy     v.

· Commonwealth, 509 S.W.3d 34, 48 (Ky. 2017) (quoting Taylor v.

 Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999)). ·Additionally, the trial court

 is obligated to "instruct the jury on all lesser-included offenses which are
                                           .                                       .
 supported by the evidence." Yarnell v. Commonwealth, 833 S.W.3d 834, 837

 (Ky. 1992).

            Kentucky Revised Statute (KRS) 506.080 sets forth the elements of

 criminal facilitation to commit a crime and states in pertinent p~rt, "[a] person

 is guilty of criminal fa9ilitation when, acting with knowledge that another

 person is committing or intends to commit a crjme, he engages in conduct

which knowingly provides such person with means or opportunity for the



                                               13.
 commission of the crime and which in fact aids         ~uch   person to commit the

 crime."

         At trial, Fairley requested the trial court to instruct the jury on the

 lesser-included offense of facilitation tq first-degree robbery. The basis for

 Fairley's request was his testimony that he witnessed an African-American

 man beating a white male and offered the assailant ~ ride to another area of

 town. The prosecutor objected, explaining that in his testimony Fairley did not

 claim knowledge ofan ongoing robbery, but rather          an assault.   l!ltimately, the

 trial court declined to instruct the jury on facilitation to .first-degree robbery.

         The trial court properly denied Fairley's request for a facilitct.tion to first-

 degree robbery jury instruction as it was not supported by the evidence. In his

 trial testimony, Fairley explicitly denied knowing that a robbe,ry was taking

 place, claiming instead that he witnessed an assault. To facilitate first-degree

 robbery, Fairley needed.to have knowledge that an individual was committing

 ~r   intending to commit robbery and then take steps to aid them in the

 completion of the criminal offense,. As Fairley denied knowing that a robbery

 was ongoing, he lacked the     requisit~   mental state. to commit facilitation to first-

. degree robbery. Accordingly, the trial court properly denied Fairley's requested

jury instruction.

III. There was Sufficient Evidence to Convict Fairley of Receiving a Stolen
     ·Firearm.

         Fairley also contends that there was insufficient evidence to sustain his
                         .             '
conviction for receiving a stolen firearm. He concedes that this allegation of ·

error is unpreserved, but has requested that the Court review this allegation of
                                             14.
error for palpable error under Kentucky Rule of Criminal Procedure (RCr)

10.26. The palpable error rule requires reversal when "manifest injustice has

resulted from the error:." Elery v. Commonwealth, 368-"S.W.3d 78, 98 (Ky. 2012)

(quoting RCr 10.26). In evaluating whether there has been manifest injustice,

the Court focuses "on what happened and whether the q.efect -is so manifest,

fundamentaJ and ianambi~ous that it threatens the integrity of the judicial
                            I



process." Martin v. 'Commonwealth, 207 S.W.3d 1, 5 (Ky .. 2006).

      At trial, the Commonwealth establisqed the. stolen nature of the firearm

through the testimony of Officer Ronald Ingram of the Hopkinsville Police

Department. ·officer Ingram recounted that in June 2013, he had prepared a

report detailing information about a firearm that had been stolen from an

automobile. As part of that report he recorded the' serial number of the weapon

and entered the   informatio~   into the National Crime Investigative Center (NCIC)

database. When Fairley was arrested, the police found that stolen gun in the

rear passenger compartment of the car in which he was sitting, approximately

a foot away from him.

      At trial, Fairley denied ownership of the weapon and explained that he

was incarcerated on the date it was reporteq stolen. Further, Fairley claimed

that he did not even realize that the firearm was in the car when he was

apprehended by police, alleging that the gun had been obscured by newspapers

in the backseat of the vehicle.

      On appeal, Fairley contends that there was insufficient proof presented

by the Commonwealth to establish that he knew or had reason to know that

                                         15
    the firearm was stolen. 8 While he reiterates that it was not his gun, Fairley

    raises for the first time the argument that the length of time fro1!1 when the gun

    was stolen to its recovery in Fairley's possession (approximately fifteen months)

    was    ~oo   lo?g to serve as evidence establishing Fairley's knowledge that the g:un

    was stolen. Fairley argues that the presumption in KRS 514.100(2) which

    states "[t]he possession by any person of any recently stolen movable property

    shall be prima facie evidence that such person knew such property was s'tolen,"

    should not apply
                  .
                     because a fifteen-month period is too long to be considered
                                                                          .


    "recently stolen."

           . In considering what meaning to give to the term "recently stolen" we note

    that "[t]he term 'recently' in this connect.ion has no fixed and definite meani.ng,

    and is a variable term, depending upon· other circumstances." Co'nsidine v.

    United States, 112 F.. 342, 349 (6th Cir. 1901). Admittedly whether the firearm

    at issue was "recently stolen" is a close call
       ~                                      .
                                                   given the fifteen-month period

    between the theft of the firearm and its recovery. We note that courts have

    found lengthy lapses of time (albeit shorter than the one· p~esented here) to be

    within the permissible time limitation of the presumption. See e.g. Lee. v.

    United States, 363 F.2d 469~ 4 75 (8th· Cir. 1966) (lapse of five months from



            s KRS   514.110(~)   states:
            A person is guilty of receiving stolen property when he receives, retains,
/           or disposes of movable property of another !mowing that it has been
            stolen, or having reason to believe that it has been stolen, unless the
            property is received, retained, or disposed of with intent to restore it to
            the owner.                                            · ·




                                                16
time_ of burglary to apprehension
                            --..,
                             ~,...
                                  with stolen securities sufficiently recent to
                                            r               .
justify inference of guilt); Hale v. UnitedStates, 410 F.2d 147, 151 (5th Cir ..

 1969) (six-month period from time of automobile theft to vehicle's recovery

sufficient to infer guilty knowledge); But see Gargotta v. United States, 77 F.2d.

977, 982 (6th Cir. 1935) (possession of pistols 293 days after theft, "cannot· in

any sense be considered so recent a possession as. to sustain a finding of guilty

knowledge that the property was stolen.").9

       Fairley did not raise this issue at trial but now insists that the recovered

handgun was not "recently stolen" so as to bring into play the presumption in

KRS 514.100(2). This argument misses the mark on palpable error rev!ew. A

stolen handgun (used in the robbery of Page given the DNA analysis) was in

Fairley's possession. He testified that he did not own the gun, he was.

incarcerated when it was stolen, and he did not realize it was in the car he was
         -                                      .   .   .

sitting in. However, in his testimony Fairley also admitted to being a convicted

felon and a drug dealer and he tried repeatedly to distance himself from the

handgun found within inches of him at the time of his arrest, when he was the

only person seated in the car. We cannot say that the palpable error standard

is met here because there simply is no manifest injustice on these facts.




       9 Fairley also cites this Court to Hayes v. Commonwealth, 175 S.W.3d 574 (Ky.
2005), in which the Court noted in dicta that the theft of a motorcycle three to four .
months before it was recovered was insufficient to trigger the presumption in KRS
514.110(2).                                         .

                                           17
IV. The Commonwealth's Questioning of Fairley Regarding His Violent
    Past Did Not Constitute Palpable Error.

      Fairley argues that the Commo:µwealth erred by imperinissibly
              .                 .                          '               .
questioning him about a prior bad act - an assault .. He concedes that this·

argument is   u~preserved   and again requests palpable error review under RCr

10.26.

      During Fairley's direct examination, he opined that he was a "nice" guy.

On ·cross-examination, the following exchange occurred:

      Prosecutor: You said you were a nice person, do nice people
      assault people?

      Fairley: I'm not gonna say nice people don't assault people, I feel if


      Prosecutor: Have you ever assaulted anyone?

      Fairley: Yes sir.

      Prosecutor: Ok.

      The Commonwea11*J. contends that Fairley "opened the door," t9 the
                                                  \
discussion of his prior assault by claiming to be a "nice" person. Fairley

contends that the Commonwealth was not permltted to address specific

instan.ces of Fairley's conduct, su~h as his prior assault.

      "Generally stated,   'op~ning   the door' to otherwise inadmissible evidence

is a form of waiver that happens when one party's use· of inadmissible evidence

justifies the opposing party's rebuttal of that evidence with equally

inadmissible proof." Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky.

2009). However, where the defendant places his charac::ter at issµe, the

Commonwealth is limited to character evidence in the form of reputation or
                                          18
 opinion, and is barred.from raising specific instances of conduct. Purcell v.

 Commonwealth, 149 S.W.3d 382, 399 (Ky. 2004) overruled on other grounds by

 Commonwealth v. Prater, 324 S.W.3d 393, 400-01 (Ky. 2010) (citing Kentucky

Rule of Evidence (KRE) 405(a)).

          In the case at bar, the Commonwealth impermissibly questioned Fairley

about a prior bad act- the assault- to rebut his assertion of good character.

While the Commonwealth's questioning was improper, we do not find that the

. introduction of this   evid~nce    rises to the level of palpable error. We note that.

the questioning about Fairley's prior assault was brief and made up a fleeting

portion of his trial, while ·the evidence of Fairley's guilt was substantial. We

thus conclude that while the Commonwealth's questioning of Fairley about his

prior assault was error, this error was not palpable.

                                        CONCLUSION

          For the foregoing reasons, we affirm the conviction and sentence of the

Christian Circuit Court.

          All sitting. All concur.




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COUNSEL FOR APPELLANT:

 John Gerhart Landon
·Assistant Public Advocate
 Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorn~yGeneral of Kentucky

Perry Thomas Ryan
Assistant Attorney General




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