         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 AFTERJANUARY 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 AT,~ONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                   RENDERED : JUNE 17, 2010
                                                      NOT TO BE PUBLISHED

              ,$ixyrrzttr Courf of ~::e~ eztfixrkV
                             2009-SC-000014-MR



JAMEY COPE                                                           APPELLANT



                ON APPEAL FROM MADISON CIRCUIT COURT
V.             HONORABLE JEAN CHENAULT LOGUE, JUDGE
                           NO . 08-CR-00008



COMMONWEALTH OF KENTUCKY                                               APPELLEE




                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Jamey Cope's night of revelry turned into a night of violence when he

kicked out a window to enter the apartment he shared with Debra Sloan, who

had locked him out, and then sliced Sloan's forehead with a knife and punched

her in the face. From the criminal charges against Cope arising out of those

events, a circuit court jury convicted him of one count of first-degree assault,

one count of second-degree wanton endangerment, and of being a second-

degree persistent felony offender (PFO 2) . Cope filed this appeal claiming that

the trial court erred by refusing to give an extreme emotional disturbance

(EED) instruction to the jury. We disagree.
                    I . FACTUAL AND PROCEDURAL HISTORY.

      Cope, Sloan, and others, including Sloan's daughter, Christina

Massengale, drank at a local bar. After returning home, Cope went upstairs to

another apartment to visit his former girlfriend. Sloan became jealous and

called Cope to tell him to come home or she would lock him out. Sloan then

locked the door and told Massengale to call the police if Cope came home.

When Cope arrived home and kicked the locked door, Massengale called 911 .

Cope then kicked out a window to gain entrance to the apartment. Cope

grabbed the phone from Massengale and destroyed it. Massengale fled to fetch

her brother. Once outside, Massengale flagged down an officer who had been

dispatched in response to her 911 call .

         Meanwhile, inside their apartment, Cope called Sloan names and

threatened to kill her. Cope cut Sloan's face over her eye with a knife, jabbed

the knife at Sloan's head, and punched her in the face. While trying to defend

herself against the knife attack, Sloan cut her hands by grabbing the knife

blade.

         When police entered the apartment, Sloan and Cope were in a bedroom

behind a closed door. Officers' repeated efforts to pry open the door were

largely unsuccessful ; although, at one point, they were able to open the door

slightly and saw Cope brandishing a knife in a downward direction toward

Sloan. At one point, an officer sprayed pepper spray into the bedroom. At

another point, Cope swung the knife in the officers' direction .
      Officers eventually splintered the door and entered the bedroom.

According to their trial testimony, Cope was combative and resisted arrest .

One of the officers shocked Cope with a stun gun, but Cope recovered and

resumed the fight. An officer then delivered several blows to Cope's leg to get

"pain compliance" from Cope . Even after the officers finally handcuffed him,

Cope remained combative and threatened to kick out the windows of the police

cruiser. At the police station, Cope stated that he and Sloan had gotten into an

argument and that she had threatened to kill herself.

      As a result of the fracas, Sloan suffered a fracture of the orbital floor of

her eye socket, which required surgical repair. Sloan also suffered knife

wounds to her forehead and hands. One hand required a surgical repair of

damaged nerves .

      The grand jury indicted Cope on one count of first-degree assault for

"intentionally causing serious physical injury" to Sloan by cutting her with a

knife; two counts of first-degree wanton endangerment for his actions directed

at the police officer; and one count of being a PFO 2 . All charges resulted in a

jury trial. At the conclusion of the evidence at trial, the trial court instructed

the jury on the lesser-included offenses of second-degree assault and fourth-

degree assault but refused Cope's request for an EED instruction. The jury

found Cope guilty of first-degree assault and one count of second-degree

wanton endangerment but acquitted Cope on the other count of first-degree

wanton endangerment . The jury also found Cope guilty of being a PFO 2 .
      The jury recommended that Cope be sentenced to twenty years'

imprisonment on the assault conviction and twelve months' incarceration (and

a $500 fine) for the misdemeanor wanton endangerment conviction . The jury

recommended enhancement of Cope's assault penalty to thirty years'

imprisonment as a result of his PFO 2 conviction. The trial court sentenced

Cope in accordance with the jury's recommendation,) after which Cope filed

this appeal as a matter of right .2


                                      II . ANALYSIS .

      The only issue before us is whether the trial court erred by refusing to

give Cope's requested EED instruction to mitigate the assault charge. In order

to decide whether an EED instruction was appropriate in this case, we must

first examine both the relevant statutes and our EED precedent.

      As it pertains to this case, KRS 508 .010(1)(a) provides that a person

commits first-degree assault by "intentionally causing] serious physical injury

to another person by means of a deadly weapon or a dangerous

instrument . . . ." Because first-degree assault is an intentional offense, EED is

potentially applicable because of KRS 508.040(1), which provides that "(i]n any

prosecution under KRS 508 .010, 508 .020 or 508 .030 in which intentionally

causing physical injury or serious physical injury is an element of the offense,

the defendant may establish in mitigation that he acted under the influence of

extreme emotional disturbance, as defined in subsection (1) (a) of

    By operation of law, the sentence for the misdemeanor wanton endangerment
    conviction must run concurrently with the sentence for the felony assault
    conviction . Kentucky Revised Statutes (KRS) 532 . 1 10(l)(a) .
a   Ky. Const . § 110(2)(b) .
KRS 507.020 ." Although it pertains specifically to the offense of murder,

KRS 507 .020(1)(a) provides, in relevant part, that a person is not guilty "if he

acted under the influence of extreme emotional disturbance for which there

was a reasonable explanation or excuse, the reasonableness of which is to be

determined from the viewpoint of a person in the defendant's situation under

the circumstances as the defendant believed them to be."

       A finding that a defendant acted under the influence of EED does not

entitle that defendant to an outright acquittal. But a finding that a defendant

acted under EED is important because it reduces the punishment a defendant

may receive . In the case at hand, if Cope had been found to be acting under

EED, his first-degree assault conviction, which normally is a Class B felony,3

would have been reduced to a Class D felony.4 In practicality, this means that

Cope's possible sentence would have been reduced from a range of ten to

twenty years' imprisonment to a range of one to five years' imprisonment. 5

       EED is a curious mix of the objective and the subjective . Under the

terms of KRS 507 .020(1), there must be a "reasonable explanation or excuse"


3   KRS 508.010(2) .
4   KRS 508 .040(2)(a) .
5   KRS 532.060(2) provides as follows :
          The authorized maximum terms of imprisonment for felonies are:
          (a) For a Class A felony, not less than twenty (20) years nor more than fifty
              (50) years, or life imprisonment ;
          (b) For a Class B felony, not less than ten (10) years nor more than twenty
              (20) years ;
          (c) For a Class C felony, not less than five (5) years nor more than ten (10)
              years ; and
          (d) For a Class D felony, not less than one (1) year nor more than five (5)
              years .
for the presence of EED, which connotes an objective standard;6 but the same

statutory subsection adds a subjective element when it provides that the

reasonableness "is determined from the viewpoint of a person in the

defendant's situation under the circumstances as the defendant believed them

to be."7

       Cope asserts that this duality creates a "vexing problem" because it is

unclear "[w]hat, as a matter of law, is the threshold level of reasonableness that

a defendant must meet, and . . . what objective standard [must] . . . a trial

court or a reviewing court [use] to determine whether the defendant's claim of

EED passes that threshold level[.]" We disagree with Cope's assertion because

we believe our precedent provides ample guidance about when an EED

instruction is appropriate.

       We have defined EED as being "a temporary state of mind so enraged,

inflamed, or disturbed as to overcome one's judgment, and to cause one to act

uncontrollably from the impelling force of the extreme emotional disturbance

rather than from evil or malicious purposes ."8 But we have stressed that

"[t]here must be some definitive, non-speculative evidence to support an EED

instruction ." 9 So in order to receive an EED instruction, a defendant must



6   Fields v. Commonwealth, 44 S .W.3d 355, 358 (Ky. 2001) ("Reasonableness is
    ordinarily an objective evaluation . . . .") .
    Id. ("the description of EED in KRS 507 .020(1)(a) recites a subjective test in that
    the reasonableness of the explanation or excuse is determined from the viewpoint
    of a person in the defendant's situation under the circumstances as the defendant
    believed them to be.") (internal quotation marks and emphasis omitted) .
s   McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986) .
9   Hudson v. Commonwealth, 979 S.W.2d 106, 109 (Ky. 1998) . Accord Henley v.
    Commonwealth, 621 S.W.2d 906, 909 (Ky. 1981) ("In those cases considered by
                                                6
present evidence that establishes adequate provocation, or a triggering event . t o

Moreover, the provocation leading to the triggering event must be continuous

and uninterrupted . The provocation need not necessarily be contemporaneous

with the triggering event, and the courts should look to whether there was a

sufficient "cooling-off period" that rendered the response unreasonable or the

provocation inadequate."

      On appeal, we will look to the evidence presented at trial to determine

whether a trial court erred in failing to give an EED instruction. 12 An EED

instruction is proper only when the evidence demonstrates that "the impelling

force of the extreme emotional disturbance rather than . . . evil or malicious

purposes" caused the defendant to be in "a temporary state of mind so

enraged, inflamed, or disturbed" that his judgment was overcome, thereby

causing a loss of control . 13

      Using those guidelines, we turn to the evidence in this case . Taken in a

light most favorable to him, the evidence Cope relies upon in support of his

EED claim generally is as follows :

       " Cope snorted morphine and drank heavily in the hours before the

         assault ;




   this court involving the necessity of an extreme emotional disturbance instruction,
   we have uniformly required some definitive, nonspeculative evidence .") .
   Fields, 44 S .W.3d at 359 .
   Benjamin v. Commonwealth, 266 S.W.3d 775, 782-83 (Ky. 2008) .
   See generally Greene v. Commonwealth, 197 S.W.3d 76, 82 (Ky. 2006) .
   See McClellan, 715 S.W.2d at 468-69 (defining EED and providing guidance on
   proper jury instructions on EED) .
       " Sloan carried through on her threat to lock Cope out of the apartment

         they shared;

       " Cope believed Sloan's son, with whom he did not get along, was on his

         way to their apartment;

       " Sloan insinuated that Cope would be sent to jail; and

       " Sloan allegedly threatened to kill herself and raised a knife as if to do

          so.

        Of course, not every defendant is entitled to an EED instruction . In

order to be entitled to an instruction, there must be "definitive, non-

speculative" evidence of the existence of EED. 14 In other words, like any other

instruction, there must first be a proper evidentiary basis for an EED

instruction to be given, even under the subjective approach mandated by the

statute . 15 So we reject Cope's argument, which he admits is contrary to

precedent, that a court "errs when it makes a preliminary determination that

the defendant's claim of EED is `beyond belief' or subjectively unreasonable

and then keeps that factual determination from the jury by failing to give a

requested EED instruction." To the contrary, a court must refuse to give an

EED instruction if there is no evidence sufficient to support it. 16 Of course, in


14   Hudson, 979 S.W.2d at 109.
15   See, e.g., Houston v. Commonwealth, 975 S.W .2d 925, 929 (Ky. 1998) ("Although a
     trial judge has a duty to prepare and give instructions on the whole law of the case,
     including any lesser included offenses which are supported by the evidence, that
     duty does not require an instruction on a theory with no evidentiary foundation.")
     (internal citation omitted) .
16   See, e.g., Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky. 2003) ("even viewing
     the circumstances from Caudill's drug dependent point of view, White's mere
     resistance to her demand for money was not `a reasonable explanation or excuse'
     for Caudill to become so enraged, inflamed or disturbed as to be entitled to the
                                             8
determining if the evidence warrants an EED instruction, a court must view

the evidence in the manner most favorable to the defendant. 17 An EED

instruction, accordingly, must only be given if there is a proper evidentiary

basis for it. We rely on our precedent and reject, therefore, Cope's contention

that any claim of EED, no matter how outlandish or ridiculous, automatically

entitles a defendant to an EED instruction. However, if an EED instruction is

given, the jury must determine whether a defendant acted under EED . 18

        We must then determine if the evidence presented a question for the jury

about whether Cope suffered from EED at the time he assaulted Sloan. We

may quickly reject some of Cope's alleged bases for an EED instruction

     defense of EED.") ; Scrimsher v. Commonwealth, 190 S.W.3d 318, 333 (Ky. 2006)
     ("No reasonable person would consider the ordinary stresses of childrearing,
     specifically an infant's crying and thumb-sucking, a reasonable explanation for a
     temporary state of mind so enraged, inflamed, or disturbed as to overcome one's
     judgment, and to cause one to act uncontrollably from the impelling force of the
     extreme emotional disturbance rather than from evil or malicious purposes.")
     (internal quotation marks omitted) ; Hudson, 979 S .W.2d at 108-09 ("Assuming
     arguendo that Ms. Thompson [sic] actions - verbal and physical abuse, talking to
     the `crackhead,' etc. - were sufficient to inflame Hudson's mind or to overcome his
     judgment, it is beyond belief that those actions, in and of themselves, establish
     from Hudson's point of view, a reasonable explanation or excuse for strangling the
     unconscious and bleeding Ms. Thompson to death.") ; Neal v. Commonwealth,
     95 S .W.3d 843, 850 (Ky. 2003) ("The evidence did not justify an instruction on
     first-degree manslaughter with a mitigating instruction regarding extreme
     emotional disturbance . Neal alleges that because Strong testified that the victim
     had come on to Neal in a sexual way that Neal was entitled to the instructions .
     After this alleged occurrence, Neal left, planned the robbery, and returned to carry
     it out. It is incredible to believe that Neal was so enraged and disturbed as to act
     uncontrollably and then came back sometime later to rob the victim . There was no
     substantive evidence that this robbery and murder were perpetrated as a result of
     EED. The trial judge properly denied the requested instruction .") .
17   Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005) ("Because the issue is
     whether there was evidence to warrant an instruction on assault under extreme
     emotional disturbance, we must consider the evidence in the light most favorable
     to Appellant.") .
18   See, e.g., Benjamin, 266 S.W.3d at 782 ("if evidence . . . has been established,
     which puts the existence of EED in dispute . . . the existence of EED becomes a
     question for the jury .") .
because, even viewing the circumstances from his point of view, they do not

provide a reasonable explanation or excuse for him to have become so enraged,

inflamed, or disturbed as to be entitled to an EED instruction.

       First, voluntary intoxication or substance abuse is an insufficient basis

to mandate an EED instruction. 19 Second, anger does not entitle a defendant

to an EED instruction.20 Also, neither Cope's fear of encountering someone

with whom he apparently was not on good terms, nor Sloan's locking the

apparently intoxicated Cope out of their apartment, nor her insinuation that

Cope would be taken to jail for his actions, are so inflaming or disturbing as to,

even from Cope's point of view, cause Cope to lose control over his actions . In

fact, as will be discussed later, Cope testified that, essentially, he was able to

control his actions.

       What we are left with is whether Cope was entitled to an EED instruction

because of his contention that Sloan threatened suicide and raised a knife in a

manner consistent with carrying out that threat. Under the facts of this case,

no EED instruction was required.

        Perhaps, one could argue, Sloan's alleged threat to commit suicide - a

threat she denied making, but we must view the evidence in a light most

favorable to Cope for purposes of reviewing his claim that he was entitled to an

EED instruction -- and the wielding of an instrument readily capable of

carrying out that threat could theoretically have been a triggering event for

19   Caudill, 120 S.W.3d at 668 ("a drug dependency or the effects of substance abuse,
     standing alone, does not authorize instructions on EED . . . .").
20   Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998) ("Evidence of mere `hurt' or
     `anger' is insufficient to prove extreme emotional disturbance .") .

                                           10
EED purposes . But in the case at hand, Cope has not pointed to any act he

undertook that, even from his point of view, could reasonably be seen as being

aimed at thwarting Sloan's suicidal threat. Cope did not dispute the

Commonwealth's assertions in its brief that Cope claimed self-defense as the

reason he assaulted Sloan . In other words, although he claims now that Sloan

raised a knife as if to commit suicide, Cope testified that he punched Sloan

because he believed she was going to attack him with the knife. Also, Cope

testified that he was compliant with the police, which logically denotes a person

who is able to control his actions, not a person who is uncontrollably inflamed.

In other words, Cope's testimony failed to show how, even from his point of

view, he was so inflamed or enraged by Sloan's alleged suicidal threat as to

have created a jury issue about whether he was suffering from EED. As the

Commonwealth notes, Cope's "own testimony supports the fact that he was in

control of his actions at all times . Therefore, the trial court's refusal to give an

EED instruction did not violate his rights . . . ."


                                   III. CONCLUSION .

        For the foregoing reasons, we affirm the judgment of the trial court.

        All sitting. All concur.




21   Unfortunately, the video record provided to us did not enable us to view Cope's
     testimony. But, importantly, Cope's reply brief takes issue only with the legal
     significance of his testimony -- not with the Commonwealth's factual recitations of
     his trial testimony (i. e., his claims regarding Sloan's suicidal ideation, his having
     acted in self-defense, and his having been compliant with the police) .
COUNSEL FOR APPELLANT:

Jamesa J. Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
