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ANTHONY STURGEON APPELLANT

_ ON APPEAL FROM CAMPBELL_CIRCUIT COURT
V. HONORABLE FRED A. STINE, V, JUDGE
NO. `13-CR-00699

COMMONWEALTI-I OF KENTUCKY APPELLEE

lOPI-llWIOI\I OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellant, Anthony Ray Sturgeon, appeals from a judgment of the

Campbell Circuit Court convicting him for the murder of his brother, Randal
Sturgeon, and sentencing him to twenty-five years in prison. He contends that
the trial court erred by:' (1] failing to dismiss two jurors for cause; (2) failing to
instruct the jury on the lesser offense of reckless homicide; and (3) admitting
into evidence several hearsay statements of the victim made shortly before his

death. We affirm the judgment of the Campbell Circuit Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was an ironworker in northern Kentucky who fell upon hard
times as construction jobs dwindled during the recent economic recession.

_Eventually, he moved back into his childhood home where his brother, Randal,

lived. Appellant’s son, Jason, also moved into the house. The residence was
subject to a foreclosure proceeding so each of the three occupants knew he
must soon find another place to live.

On July l, 2013, Appellant shot and killed Randal who was reclining on
the couch in the living room of the residence they shared. Immezdi_ately after
the shooting, Appellant called 91 l. He told the 911 operator that he and his
brother had argued; that he did not intend to shoot him; and that he fired the
gun accidentally.

The next morning Appellant gave police investigators a more complete
explanation of the event. He said that he and Randal argued over a number of
things, including Randal’s failure to clean up the kitchen, his excessive
. consumption of milk, and Appellant’s belief that Randal had pocketed for
himself the money he collected from Appellant and Jason to pay bills.

The matter came to a head When Appellant learned that Randal was
moving out and taking with him the Wi-Fi router used at the residence for
internet scrvice. Jason had just paid the monthly internet service fee and
Without the router the payment would be wasted.- Appellant said that he paced
about his room pondering what to do as the pressure mounted within `him.
After concluding that he was “fucked” and would be the “weak one” if he did
not do “something,” Appellant decided to confront Randal with a loaded gun.

He told police that at one point he feared Randal was “going to get” him

and that 'herwanted to hurt Randal,1 but that his purpose for Wielding the gun
was only to-scare Randal.

Appellant explained when he approached Randal, he touched the trigger
of the gun and “it just Went off.” Appellant said he had not previously handled
the gun and was surprised when i_t fired so easily. The bullet struck Randal in
the chest; he died almost immediately. -

Appellant’s principal theory of defense was that he was not guilty of
murder because he had acted under the impelling force of extreme emotional
disturbance triggered by his anger that Rand_al was taking the Wi-Fi router
right after Jason had paid the bill for internet service. The jury rejected this

defense and convicted Appellant of murder.

II. ANALYSIS

A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING- TO
~ . STRIKE JUROR 500 F_OR CAUSE.

1. Application of RCr 9.36(1)
Appellant first contends that the trial court erred by failing to grant his

motions to strike for cause two prospective jurors, identified as Juror 500 and
Juror 566. In the final analysis, whether to excuse a juror for cause rests upon
the sound discretion of the trial court and on appellate review, we will not
reverse the trial court’s determination “unless the action of the trial court is an
abuse of discretion or is clearly erroneous.” Ordway v. Commonwealth, 391

S.W.3d 762, 780 (Ky. 2013)_. Implicit in that rule is the assumption that the

 

1 Appellant did not assert a self-protection defense at trial.

3.

trial court has applied the correct standard for exercising it discretion. We
conclude ~that, the trial court applied the correct standard; however, we
concede that we have allowed the standard for judging for-cause challenges of
prospective jurors to drift too far from its anchor: RCr 9.36(1).

RCr 9.36(1) plainly and succinctly establishes the standard by which
trial courts are to decide whether a juror must be excused for cause. The rule
says: “When 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.”

` Rule 9.36(1) is the only standard for determining whether a juror should
be stricken for cause. A- clearer, more concise expression would be difficult to
conceive. “Reasonable ground to believe” is a familiar, easily-applied concept
that trial judges use regularly in a' variety of situations.- As with statutes,
courts are obligated to interpret our formally~adopted rules in accordance with
their plain language. Hazq.rd Coal Corporation v. Knight, 325 S.W.3d 290, 296
(Ky. 2010) (“[W]e interpret the civil rules in accordance with their plain
language . . . . The mandate of CR 39.01 is unmistakable in its clarity.”);
Parr“ish v. Commonwealth, 283 S.W.3d 675, 677 (Ky. 2009) (“[W]e must accept
the plain meaning of the language of the rule [RCr 11.42].”); Lanham v.
Commonwealth, l71 S.W.3d 14, 21 (Ky. 2005] (“More importantly, however, we
cannot ignore the plain language of the rule [KRE 10;\3_(d]].”). Despite the plain
and forthright language of RCr 9.36(1), in a variety of cases over the years, we '

have expounded upon the rule to the detriment of its plain language.

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Our divergence from RCr 9.36(1)’s plain language started after Mabe v.
Commonwealth, 884 S.llV.~2d 658 (Ky. 1994). Mabe explained why a prospective
juror who had voiced a personal aversion to certain legal principles could not
simply be “rehabilitated” with a “magic question” allowing the juror to disavow
his previously-expressed opinion on the law, as held in Montgomery v.
Comrnonwealth, 819 S.W.2d 713 (Ky. 1992]. Our explanation concluded with
this statement

A per se disqualification is not required merely because a juror
does not instantly embrace every legal concept presented during
voir dire examination. The test is not whether a juror agrees with
the law wh__en it is presented in the most extreme manner. The test
is whether, after having heard all of the evidence, the prospective
juror can conform his _views to the requirements of the law and
render a fair and‘ impartial verdict

884 S.W.2d at 671 (emphasis added). Mabe made no mention of RCr 9.36(1).
Taken out- of context, the last sentence of the above quote might appear
to express a new and definitive test (“the test’_’) for determining when a juror
must be excused for cause, and indeed, numerous opinions rendered after
Mabe construed it in precisely that manner. See e.g. Little v. Commonwealth,
422 S.W.3d 238, 244 (Ky. 2013); Dunlap v. Commonwealth, 435 S.W.3d 537,
581 (Ky. 2013); Ordway v. Commonwealth, 391 S.W.3d 762, 781 (liy. 2013);
King v. comaonwealih, 276 s.W.3d 270, 278 (Ky. 2009); Fugerr v. _
Commonwealth, 250 S.W.3d 604, 622-623 (Ky. 2008); Wheeler v.

Commonwealth', 121 S.W.3d 173, 179 (Ky. 2003); Cauclill v. Commonwealth,

120 S.W.3d 635, 656 (Ky. 2003); and Thompson v. Cornmonwealth, 147 S.W.3d -_
22, 51 (Ky. 2004). _ _

Wheeler further diminished the primacy of RCr 9.36(1) by identifying the
Mabe phraseology not as “the test,” but as “the true test,” for determining when
a juror should be stricken for cause. 121 S.W.3d at 179. We repeated the
unfortunate expression in King, 276 S.W.3d at 278, and Ordway,

39 1 S.W.3d at 781 (referring to the Mabe phrasing as “the established test”).

To be clear, the Mab'e iteration was not intended to replace RCr 9.36(1),
and properly construed, it does not do so. However, as subsequently applied,
the phrasing has been construed to mean that a prospective juror is excused
for cause only if the trial court specifically finds that the juror cannot render a
fair and impartial verdict or conform h_is views to the requirements of'the law.2
Rule 9.36(1) requires no such finding; instead, regardless of the juror’s actual
ability to render a fair and impartial verdict, Rule 9.36(1) mandates the removal
of a juror if there is merely “a reasonable ground to believe” that he cannot
render a fair and impartial verdict The difference is palpable. dust as
_“probable cause” or “reasonable grounds” to support an arrest does not require
an actual belief in the verity of the charge, “a reasonable ground to believe” a
prospective juror cannot be fair and impartial is not tantamount to an actual

finding that the juror cannot be fair and impartial RCr 9.36(1) requires only

 

2 We regard the dual prongs of the Mabe iteration, “conforrn his views to the
requirements of the law and render a fair and impartial verdict,” as redundant
because “render[ing] a fair and impartial verdict” necessarily requires one to conform
views to the requirements of the law regardless of one ’s contrary views.

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that there be a “reasonable ground to believe” that he cannot When the trial
court is satisfied'that a “reasonable ground” exists, the juror “shall be
excused.” RCr 9.36(1]..

We confronted the issue less directly in Ordway by holding:

[W]hen there is uncertainty about Whether a prospective juror
should be stricken for cause, the prospective juror should be
stricken. The trial court should err on the side of caution by
striking the doubtful juror. . . . [W]here questions about the
impartiality of a juror cannot be resolved with certainty, or in '
marginal cases, the questionable juror should be excused.

391 S.W.3d at 780, That is the essence of RCr 9.36(1). The trial court’s
ultimate belief that a challenged juror “can conform his views to the
requirements of the law and render a fair and impartial verdict” does not
necessarily dispel a “reasonable ground to believe” otherwise, and thus does
_ lnot satisfy the requirement of RCr 9.36(1).

As reflected in the standards set forth above, a juror who explicitly
admits that he_will» not or cannot follow the law as contained in the
instructions, has by definition identified himself as a “doubtful” juror who must
be excused for cause. Ord.way, 391 S.W.3d at 780._ We understand and allow
that a prospective juror’s response that appears on its face to_be disqualifying
may be based upon a misunderstanding of the relevant facts or circumstances
Clarifying questions may be used as needed to ascertain the juror’s true
attitude about subjects of potential bias. But questions that merely induce the
juror to change his mind or to retract a disqualifying remark do not

automatically dissipate the “reasonable ground” to believe the bias and

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partiality implicit in his initial remark ln this vein, we stated in Shane v.
tjommonwealtl'i, 243 S.W.3d 336, 338 (Ky. 2007), that “a juror might say he
can be fair, but disprove that statement by subsequent comments or demeanor
so substantially at odds that it is obvious the judge has abused his discretion
in deciding the juror is unbiased.”

Taken in context, the expression in Mabe was accurate, but its
appropriation in other cases to stand as “the true test” for addressing for-cause
challenges to prospective jurors is misleadingl RCr 9.36(1) is the only standard
to be applied; the Mabe iteration repeated in King, Ordway and other cases
does no't serve'as an accurate substitute for RCr 9.36(1)., With this adjustment
in mind, we examine Appellant’s specific claims.

2. Juror 500

During voir dire examination, Appellant’s counsel attempted to ascertain
the jurors’ attitudes toward the legal construct of the temporary state of mind
known as “extreine emotional disturbance” lEED].`3- To draw an analogy,
counsel asked jurors about their attitudes toward temporary insanity. Juror
500 said he rejected the notion of temporary insanity because he believed a
person was either sane or not _sane, thus implying the belief that insanity could
not be a temporary condition. Juror 500 said that he would have a “hard time”

applying the law contrary to his belief.

 

3 McClellan v'. Commonwealth, 715 S.W.2d 464, 468-469 (Ky. 1986), defines
EED as “a temporary state of mind so enraged, inflamed, or disturbed as to overcome
one's judgment, and to cause one to act uncontrollany from the impelling force of the
extreme emotional disturbance rather than from evil or malicious purposes.”

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When the questioning b`y Appellant’s counsel focused specifically upon
EED, Juror 500 indicated that he accepted the legal concept of a temporary
state lof mind that so enraged, inflamed, or disturbed someone so as to
overcome one’s judgment, and that he could apply the law relating to EED if so
instructed. Although our review of the record is impeded by the inaudibility of
some juror responses, it appears that during voir dire questioning, Juror 500
later equivocated on his ability to apply EED. Although the Commonwealth_
now` challenges Appellant’s claim that Juror 500 vacillated on his-ability to
apply the law relating ito EED, we have no doubt that he did so. Despite Juror
500’s inaudible and barely-audible responses, the prosecutor’s request to
“rehabilitate” him With an unusual second round of voir dire questioning about
EED, and the trial judge’s expressed desire to have Juror 500 “clarify” his
attitude about EED, amply reveals the equivocation. The trial judge followed
the prosecutor with additional questions for the entire venire. As a result, five
other jurors clearly expressed an inability to apply the law relating to EED, and
Appellant challenged all six for cause. The trial court denied the challenge to
Juror 500 without a specific explanation, but granted the challenge of the other
five jurors. Appellant used a peremptory strike to remove Juror 500 from the

panel selected to_ try the case.4

 

4 Appellant’s counsel complied with the rule we established in Gabbard v.
Commonwealth, 297 S. W. 3d 844, 854 (Ky. 2009), for preserving an alleged error in the
failure to grant a challenge for cause: “[I]n order to complain on appeal that he was
denied a peremptory challenge by a trial judge' s erroneous failure to grant a for-cause
strike, the defendant must identify on his strike sheet any additional` jurors he would
have struck.” Appellant’s counsel identified on the jury strike form the two jurors he

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'l`he issue before the trial court was not whether Juror 500 was actually
able to render a fair and impartial verdict. The test demanded by RCr 9.36(1)
is whether, given his inability to follow the law concerning `“temporary
insanity,” his subsequent vacillation on whether he could apply the legal
concept of EED, and all the other information bearing upon his qualifications
to serve, there existed a “reasonable ground to believe” that he could not.

To determine whether a reasonable ground existed to doubt the
challenged juror’s ability to render a fair and impartial verdict, the trial court
“must weigh the probability of bias or prejudice based on the entirety of the
juror’s responses and demeanor. There is no ‘magical question’ that can-
rehabilitate a juror as impartiality is not a technical question but a state of
mind.” Sluss v. Commonwealth, 450 S.W.3d 279,.282 (Ky. 2014) (quoting
Shane v. Commonwealtti, 243 S.W.3d 336, 338 (Ky. 2007)). “The decision as to
whether to strike a prospective juror for cause lies within the sound discretion l
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
courtfs determination.” Chatman'v. Commonwealth, 241 S.W.3d 799, 801 (Ky.
-2007](citation and internal quotation marks omitted).

Although significant portions of the voir dire record reflecting Juror 500’s
comments are hampered by inaudibility, and we have no specific findings of

the trial court pertaining to Juror 500’s responses, and despite his apparent

 

would have peremptorily struck had he not been compelled to use peremptory strikes
to remove Jurors 500 and 566.

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vacillations, upon a review of his audible voir dire responses taken in their
entirety, we find nothing in the record to establish a reasonable ground to
doubt his qualifications, and we are afforded no reason to doubt that the trial
court applied the appropriate standard. Accordingly, we are unable to
conclude that the trial court abused its discretion or was clearly erroneous
when it declined to excuse Juror 500. n

3. Jizror_' 566'
Juror 566 went to high school with the prosecutor trying the case but

' said that would not affect her ability to render a fair verdict. She also indicated
that she had read about the shooting when it happened,. but that too she
affirmed, would not affect her impartiality In response to defense counsel’s
inquiry, Juror 566 acknowledged that she had an aversion to guns, which she
said would not give the Commonwealth an advantage though it might give the
Commonwealth a vaguely~defined “leg-up,” apparently because-this is a case
involving gun violence. She hastened to add that her personal distaste for
guns would not detract from her ability to be fair and impartial in her
deliberations The trial court concluded that Juror 566’s discomfort with
firearms was not disqualifying Nothing in her responses suggested that her
attitudelabout guns would translate into a bias or partiality against Appellant
simply because he used a gun rather than some other kind of weapon. Upon
the review of the entire examination of Juror 566, we find no reasonable

ground to believe'that she could not render a fair and impartial verdict on the

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evidence as required by RCr 9.36(1). The trial court did not abuse its
discretion by denying Appellant’s motion to strike Juror 566 for cause.

B. TI'I'E TRIAL COURT PROPERLY DECLINED TO INSTRUCT THE JURY ON
RECKLESS HOMICIDE.

We next consider Appellant’s claim that the trial- court should have
instructed the jury on the charge of reckless homicide as a lesser-included
offense. The trial court instructed t-he jury on intentional and .wanton murder, '
first-degree manslaughter under extreme emotional disturbance, and second-
degree manslaughter for wanton conduct, but rejected Appellant’s request for a `
reckless homicide instruction.

“[A] trial court is required to instruct the jury on affirmative defenses and `
lesser-included offenses if the evidence would permit a juror reasonably.to
conclude that the defense exists or that the defendant was notrguilty of the
charged offense but was guilty of the lesser one'.” Harris v. Commonwealth, 313
S.W.3d 40, 50 (Ky. 2__010) (cit_ations omitted). We review a trial court’s decision
for declining to give a requested instruction under the abuse of discretion
standard. Sargent v. Sha_`)‘j"er, 467 S.W.3d 198, 203 (Ky. 201-5). `

K`Rs 507.050(1) provides than “A person is guilty of“rooisioss homicide
when, with recklessness he causes the death of another person.” -By definition,
a person acts with recklessness with respect to another person’s death when
he “ fails to perceive a substantial and unjustifiable risk” that his conduct could
result in the death of another person and such failure constitutes “a gross '
deviation from the standard of care that a reasonable person would observe in

tho simaoon.” KRs 501.020(4) (omphasi`s addod).“
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To warrant an instruction on reckless homicide in this oase, there must
be evidence to support the reasonable inference that Appellant “failed to
perceive a substantial and unjustifiable risk” that his conduct at the time of
the offense could result in Randal’s death. Appellant’s admission that he took
the gun to confront lRandal for the purpose of seating him indicates that he
did, in fact, perceive the risk associated with pointing a loaded firearm at
someone. l-Ie knew that the fear he hoped to instill in Randal (the fear lof being d
shot) would be produced by the‘risk associated with the loaded gun.

Appellant also admitted shoe with the gun pointed directly st Rehdoi, he
placed his finger against the trigger. The conduct described by Appellant does
not suggest “recklessness.” lt would be objectively unreasonable for a juror to
believe from the totality of the evidence that Appellant failed to perceive the
substantial and unjustifiable risk of death associated with pointing a loaded
gun at a person.to scare him, and then touching the trigger. Accordingly, we
conclude that the trial court correctly determined that the evidence did not
support the giving of an instruction on reckless homicide.

C. KRE 803[3] - ADMISSIO_N OF THE VI_CTIM’S TEXT MESSAGES.

Appellant contends that the trial court erred by permitting the
0ommonwealth to introduce several statements made by Randal-i`n the form of
text messages sent in the days and weeks immediately preceding the shooting.
Appellant had sought to exclude‘the statements as inadmissible hearsay. The
Commonwealth argued that the statements were admissible to show that in the

days leading up to his death, Randal was afraid of Appellant. The trial court

13

ruled that some of the messages fit within KRE 803(3), the present state 'of'
mind exception to hearsay, and were otherwise admissible under the relevancy
provisions contained in KRE 401-403. `

KRE 803 provides as follows:

The following are not excluded by the hearsay rules, even though
the declarant is available as a witness:

[3) Then existing mental, emotional, or physical condition. A
statement of the declarant's then existing state of` mind, emotion,
sensation, or physical condition (suchas intent, plan, motive,
design, mental feeling, pain, and bodily health], but not including a
statement of memory or belief to prove the fact remembered or

" believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.

The rule first requires that the out-of-court statement must express the
declarant’s present mental, emotional, or physical condition. '.“The state-of-
mind exception is limited`to a statement about a then-existing mental state or
condition.” Dillon v. Commonwealth 475 S.W.3d 1, 22 (Ky. 2015). The “critical
element of the l[state of mind] exception [is] the contemporaneity of the
statement and the state of mind it manifests . . . [S]tatements reporting states
of mind that existed at earlier points in time cannot qualify for admission
under this exception.” Robert G. Lawson, The Kentucky Evidence Law
Handbook § 8.50[3] at 645 (4th ed. 2003)). Professor Lawson cautions: “Courts
sometimes apply the state of mind exception without careful attention to

relevance. Such oversight is more likely to occur when a ‘_‘then existing” state

14_

of mind is offered to show that the same state of mind existed at‘an earlier or
later point in time.” Id. at 648.

To be admitted as evidence, an out-of-court statement that fits within the
state of mind exception must still meet the relevancy provisions of KRE 401-
403. “Where a victim’s state of mind is not at issue, the testimony is not
allowed to be admitted into evidence.” Bray v. Commonwealth 68 S.W.3d 37 5,
381 (Ky. 2002) (citation omitted).

[T]o be admitted at trial, evidence must be relevant. KRE 402.
Relevant evidence is ‘evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.’ KRE 401. However, even relevant evidence ‘may be
excluded if its probative value is substantially outweighed by the
danger of undue prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.’ KRE 403.

Moorman v. Commonwealth 325 S.W.3d 325, 332~333 (Ky. 2810). Upon review
of the nine statements challenged by Appellant, we_conclude that several were
improperly admitted because they are irrelevant, but their overall effect was
harmless. a

We find no error in admitting Randal’s text message statement “No
problem, ask about a rental. An empty garage would be fine. Living here is
pure hell.” The statement reflects Randal’s then~present state of mind whichh
may be characterized as extreme displeasure in his current residence with
Appellant, which is relevant to show the disharmonious relationship between

Randal and Appellant from which the jury may infer a motive for the shooting

15

We also agree that Randal’s statement to his daughter asking if he could
spend the night at her place because he was afraid to go home without a phone
was properly admitted. The out-of-court statement reveals Randal’s
contemporaneous state of mind, fear, and is relevant to show the lack of
amicability between Randal and Appellant.

Several other statements by Randal were not relevant, even if they did
reveal a present state of mind, After initially admitting into evidence Randal’s
text message that read: “I need a place to move into soon. I’ve been looking
hard for a place to go. He was steaming at me again. I bring the best out of
people. LOL.” The trial court reconsidered and admonished the jury to
disregard it. We agree that with no indication of who “he”-refers to, the text
' was irrelevant. Similarly, Ra.ndal’s text message stating: “I’m really upset
about this, I don’t`want_to have to get stuck with the bills lagain.”'bears nothing
to indicate what “this” refers to, and nothing to link Randal’s stated condition
to Appellant. It, too, is irrelevant

Other messages we regard as-<irrelevant pertain to Randal’s search for a
new place to live and his joy in finding a place. Because of the pending
eviction, the fact that all three occupants of the house would soon move was
not an issue. Randal’s message to his friend, Blake: “Hey, Blake, would you
know of any rental property, and can you give me Lisa,’s phone number?” is not
relevar;. The statement shows nothing more than the fact that Randal was
moving out. Randal.’s text message to his son: “Hey, good news, Scott has a

room I can stay in. $50 a week and pay the cable every month.” is irrelevant

16`

His' message to his ex-wife: “Hey clear, good news, Scott has a room I can stay _
for $50 a Week. And pay for cable every month. You don’t know how much
this does for me. This has lifted the weight of the world off my shoulders.” “So
happy” reflects Raridal’s then-present state of happiness, but we see no
relevance in its admission.

_ Randal’s joyful text message to his new roommate, Scott: “Hey Scott and
Bella, I’m sony for being overzealous, I’m not used to having someone be this
kind to me,.” is irrelevant Finally, Randal’s text message to his daughter,
stating: “Talked to [Appellant], said I could take the couch and love seat and
air conditioner. Oh yeah, for $150,” is irrelevant

Despite the irrelevance of these statements, their prejudicial effect was
virtually nil. Appellant did not deny shooting Randal; his claim was that he did
so under the stress of an extreme emotional disturbance “A non-
constitutional evidentiary error may be deemed harmless . . . 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). Randal’s frustration at the residence he shared with Appellant and
his joy in finding a new place could have had no prejudicial impact on the

‘ jury’s decision.

III. CONCLUSION

For the foregoing reasons, the judgment of the Campbell Circuit Court is

affirmed, °

17_

All sitting. Minton, C.J.; Cunningham,.Hughes, Keller, Venters, and

Wright, JJ., concur. VanMeter, J., concurs in result only. - 1 -

COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:

n Andy Beshear
Attorney General o`f'Kentucky

Gregory .C. Fuchs .
Assistant Attorney General '

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