         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
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                                                   RENDERED : MARCH 19, 2009
                                                        NOT TO BE PUBLISHED

               '*ixyrrMr Courf of
                               2007-SC-000195-MR



 MARK A. COLYER, JR.


                ON APPEAL FROM PULASKI CIRCUIT COURT
 V.          HONORABLE JEFFREY THOMAS BURDETTE, JUDGE
                           NO . 06-CR-00203


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                         REVERSING AND REMANDING

      Appellant, Mark Colyer, Jr., was convicted by a Pulaski Circuit Court

jury of two counts of first-degree assault and two counts of second-degree

assault. For these crimes, Appellant received sentences of ten years on each

count of first-degree assault, and five years on each count of second-degree

assault. The sentences were ordered to be served consecutively for a total

sentence of thirty years imprisonment . Appellant now appeals to this Court as

a matter of right. Ky. Const. § 110 .

      Appellant asserts five arguments in his appeal : 1) that the trial court

improperly admitted evidence of his prior bad acts; 2) that the trial court erred

when it did not provide a jury instruction on the defense of voluntary

intoxication ; 3) that the jury instruction on self-defense improperly stated the

law; 4) that the amendment of the indictment to include additional offenses
 was prejudicial; and 5) that the trial court erred when it denied Appellant's

 motion for directed verdicts. Because the trial court failed to provide an

 instruction on the defense of voluntary intoxication, we reverse Appellant's

 convictions and sentence .

       On the morning of July 7, 2006, Appellant woke up at his brother's

apartment in Somerset, Kentucky, and started drinking alcohol. Appellant

testified that as he prepared to start recording music with his brother, some

girls stopped by the apartment . One of those girls was a fifteen-year-old named

K.E . 1 Appellant was twenty-three years old at the time . After the girls stopped

by the apartment several times, Appellant agreed to come outside and talk with

them. The group eventually ended up at a neighbor's apartment where

Appellant testified he drank more alcohol and took five Klonopin tablets .

       Upon returning to his brother's apartment, Appellant was confronted by

two teenage boys, N .S . and T .H., about his involvement with K.E. Accounts of

the confrontation vary. N.S. testified that T.H . told Appellant to leave K.E.

alone and that Appellant then threatened to kill both of them. N .S . also stated

that Appellant showed them tattoos and claimed to be in a gang. A neighbor

named Julius Jackson witnessed the confrontation. He testified that Appellant

walked over to T.H . and N.S . and began to threaten them . Jackson intervened

and told Appellant that if he had a problem with the children he should take it

up with their parents . Appellant provides a different version of events .


  1 Since this case deals with criminal acts, the names of all the minors are being
  withheld.
Appellant testified that N .S . and T.H . jumped to the wrong conclusion about

 his hanging out with K. E. He said there was initially a small confrontation

between the parties, but afterwards all three went to his brother's apartment to

listen to music .

       Several hours later, Sam Hodge, K.E .'s uncle and T.H .'s dad, returned to

the apartment complex . Appellant testified that when Hodge returned home a

group of people were milling about outside . Present in the group were

Jackson, Kenneth Robbins, Angela Robbins, Johnnie Burchfield, and Dearld

Helbert. Other witnesses indicated that these people were not milling about

outside or at least were not near Appellant . Appellant was in the complex's

playground talking with K.E . and a group of girls . Hodge walked up to

Appellant and asked him if he knew the ages of the girls that he was hanging

around. Appellant replied that he knew K. E . was fifteen but didn't know the

ages of the others . At this point, Hodge apparently hit Appellant, though the

testimony of how this happened varied . Appellant testified that as he took a

drink of alcohol, Hodge hit him . Others testified that Hodge hit Appellant when

Appellant menacingly approached him . Angela Robbins testified that Appellant

took the first swing.

      Appellant then testified that as he tried to grab a sharp object in Hodge's

hand someone hit him on the back of the head with a chair. Appellant believed

he was getting jumped by everyone who had been outside. He testified that he

blacked out at that very moment and does not remember the ensuing

stabbings .
       Other witnesses give a different account of the events . Kenneth Robbins

 testified that he saw Hodge speak to Appellant but did not witness the fight

 between them . He heard Appellant tell Hodge that he would return with his

brother. Kenneth testified that he was not involved in the initial confrontation .

After Appellant left the playground Kenneth sat on the front porch of his

apartment with his wife Angela, Burchfield, and Helbert.

      Kenneth then testified that after a short time Appellant returned to the

scene. Appellant asked Kenneth "where is that motherfucker at?" Before a

response could be given, Appellant attacked the party. Kenneth received a

slash on his arm. Burchfield was stabbed in the stomach. Helbert was struck

in the face . Donna Shadoan, who was inside her apartment at the time, heard

the commotion and opened her patio door to look outside . She testified that

Appellant was standing in the door, yelled at her "bitch, get back in the house,"

and stabbed her in the neck.

      After the attack Appellant fled the apartment complex . He testified that

he tried to steal a bicycle to get away but was too drunk to ride it. He passed

out in the woods and woke up the next morning unsure of what had happened

the previous day. Appellant then returned to his home in Cincinnati, Ohio .

      A Pulaski County Grand Jury indicted Appellant with one count of first-

degree assault "by stabbing Donna Shadoan, Kenneth Robbins, Johnny

Burchfield, and Dearld E. Helbert with a knife ." After Appellant's arraignment,

the prosecutor moved ex parte to amend the indictment to make a separate

first-degree assault charge for each victim . The motion was granted. The
Pulaski Circuit Court jury ultimately convicted Appellant of two counts of first-

degree assault, and two counts of second-degree assault and sentenced him to

thirty years imprisonment .

 1 . Appellant Should Have Received an Instruction on the Defense of Voluntary
                                  Intoxication

       Appellant's first allegation of error is that the trial court should have

provided the jury with an instruction on voluntary intoxication . Appellant

tendered the following instruction to the trial court:

      Even though the Defendant might otherwise be guilty of first-
      degree assault under Instruction No.      or second-degree assault
      under Instruction No .      , you shall not find him guilty under
      those Instructions if at the time he committed the offense he was
      so intoxicated that he did not form the intention to commit the
      offense .

Appellant's rationale for requesting this instruction was based on his testimony

at trial that he was drinking heavily and taking Klonopin tablets the day of the

assault. Appellant testified that he blacked out right before he began his

assaults and once he regained consciousness was too drunk to ride a bike .

The trial court ruled that a voluntary intoxication instruction was unnecessary

in light of Appellant's ability to testify in detail about what had happened

during the day of the assaults, and therefore, he did not satisfy the statutory

prerequisites for receiving such an instruction.

      KRS 501 .080 states that intoxication can be a defense to a criminal

charge if that condition "[negates] the existence of an element of the offense."

  2 Appellant testified at trial that on the day of the assault he drank a complete
  bottle of vodka, a complete bottle of champagne, a complete bottle of some
  unknown liquor, and several beers.
 Mere drunkenness alone does not require an intoxication instruction. See

 Jewell v. Commonwealth, 549 S .W.2d 807, 812 (Ky. 1977) overruled on other

 grounds, Payne v. Commonwealth , 623 S .W .2d 867 (Ky. 1981) . An intoxication

 instruction is only necessary when the intoxication was so great that the

 evidence indicates the defendant did not know what he was doing in

 committing the crimes. Springer v. Commonwealth , 998 S .W.2d 439, 451 (Ky.

 1999) .

       In this matter, there is enough evidence to support a jury instruction on

intoxication . Appellant's testimony that he drank heavily and used drugs on

the day of the assault alone would not entitle him to an intoxication instruction

if not for his testimony that he blacked out during the commission of the

assaults . Appellant's testimony regarding his intoxication or blacking out may

seem preposterous on its face. However, Appellant's testimony raises a jury

question as to whether Appellant was too intoxicated to form the intent to

commit assault. See Mishler v. Commonwealth , 556 S .W.2d 676, 680 (Ky.

1977) (holding that while defendant's testimony was almost certainly

preposterous, it raised a jury question on whether the defendant was too

intoxicated to form the intent to commit a crime) .

       While it is true that Appellant was able to remember events which

occurred before and after the assaults, such a fact does not negate his

entitlement to receive an intoxication instruction. Rather, the key to such

entitlement is whether Appellant could form the intent to commit the crime as

he was committing the crime . See Id . (holding that since the defendant
 testified that he was blacked out only during the commission of the crime a

 jury instruction on intoxication was warranted) . Thus, since the trial court

 improperly instructed the jury, a new trial is warranted for Appellant. See Id .

 Although Appellant's claim of intoxication seemingly conflicts with his claim of

 self-defense, it is a longstanding principle that the trial court is to provide

 instructions "applicable to every state of case covered by the indictment and

 deducible from or supported to any extent by the testimony." Lee v.

Commonwealth , 329 S .W.2d 57, 60 (Ky. 1959) . If similar evidence regarding

Appellant's intoxication is presented at his retrial, an instruction on voluntary

intoxication must be provided.

       Since the failure to provide an instruction on voluntary intoxication

entitles Appellant to a new trial, we now will only review his other allegations of

error to the extent necessary to provide guidance to the trial court on retrial.

                     II . Trial Court's Self-Defense Instruction

      Appellant next argues that the trial court's instruction on self-defense

improperly stated the law and affected the jury's ability to consider that

defense . Appellant argues that the trial court's jury instructions were

erroneous because it did not indicate that if he was mistaken in his belief that

he needed to defend himself he could be found guilty of a lesser included

wanton or reckless crime, such as fourth-degree assault. KRS 503.060 . The

jury instruction on self-defense stated:

      Even though the Defendant might otherwise be guilty of first-
      degree assault under Instruction No. 4, or second-degree assault
      under Instruction No. 5, if at the time the defendant stabbed
                        he believed                         or others
       acting in concert with him, was then and there about to use
       physical force upon him, he was privileged to use such physical
       force against                            as he believed to be
       necessary in order to protect himself from death or serious
       physical injury compelled by force or threat at the hands of
                                  or others acting in concert with him .

 Appellant believes that a more appropriate jury instruction would have been

 similar to the instruction from Cooper, Kentucky Instructions to Juries -

 Criminal §11 .09 (5th ed. 2007) .

       The trial court has a duty in a criminal prosecution to instruct the jury

on the entire law of the case. Lawson v . Commonwealth, 218 S . W.2d 41 (Ky.

 1949) . Thus, the jury must receive instructions on any state of the case

supported by the evidence provided. Commonwealth v. Duke, 750 S .W .2d 432

(Ky. 1988) . Instructions on the mistaken belief to use self-defense must be

provided if supported by the evidence . Hilbert v. Commonwealth, 162 S .W .3d

921, 925 (Ky. 2005) . In this matter, the trial court erred by not providing a

self-defense jury instruction which accounted for the lesser-included offense of

fourth-degree assault. Appellant's main defense at trial was that he acted in

self-defense during the altercation with Sam Hodge. Appellant testified that he

initially believed that everyone who was outside was trying to attack him. After

he claimed he blacked out, Appellant ended up injuring people other than

Hodge who apparently were not involved in the altercation. Thus, the jury

could potentially have found that Appellant had a mistaken belief that he

needed to act in self-defense and thus acted recklessly or wantonly in attacking

people who were of no threat to him. At retrial, if evidence similar to that
 presented at the initial trial is presented, an instruction on fourth-degree

 assault should be provided .

                      III. Introduction of Bad Acts Evidence

       Appellant argues that several times the trial court impermissibly allowed

 the admission of prior bad acts evidence. KRE 404(b) states:

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith . It may, however, be admissible :
       (1) If offered for some other purpose, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident; or
       (2) If so inextricably intertwined with other evidence essential to
       the case that separation of the two (2) could not be accomplished
       without serious adverse effect on the offering party.

A three-part inquiry is used to determine if the evidence of prior bad acts

evidence is admissible . Bell v. Commonwealth , 875 S .W .2d 882, 889 (Ky .

1994) ; see also Lawson, The Kentucky Evidence Law Handbook, §

2 .25(3) (4th ed. 2003) . We must determine if the evidence is relevant,

probative, and not overly prejudicial. Bell , 875 S .W .2d at 889 . Using this

framework, we will now review each individual admission of prior bad acts

evidence .

A . Admission of evidence regarding Appellant's behavior towards K.E.

        Appellant first argues that the trial court impermissibly allowed the

admittance of evidence regarding Appellant's interaction with K.E . At trial,

several people testified that Appellant had inappropriately touched and

interacted with K.E . throughout the day. Testimony indicated that this belief

led to Appellant's fight with T.H . and N.S. and the ultimate confrontation with
 Sam Hodge . At retrial, this evidence can be relevant, probative, and is not

 overly prejudicial to Appellant. See Id . at 889 .

       The interaction between Appellant and K . E . is relevant to explain why

Appellant and Hodge got into a fight at the apartment complex. The evidence

indicates that Appellant's fight with Hodge was the catalyst for the assaults

later in the evening . Thus, since the fight with Hodge was critical to explaining

why Appellant may have assaulted the victims, it was completely relevant for

some purpose other than to prove criminal disposition of the accused . Id . at

889 . This evidence was also probative . Evidence of prior bad acts is probative

if "the jury could reasonably infer that the prior bad acts occurred and that

[the defendant] committed such acts." Parker v. Commonwealth, 952 S .W .2d

209, 214 (Ky. 1997) . Here there was adequate testimony from N .S . and

Jackson that a jury could infer that Appellant did in fact have inappropriate

contact with K. E. or at least that people at the apartment complex thought

there was inappropriate contact. Appellant's counsel even mentioned that

others thought there was inappropriate contact between K . E. and Appellant in

his opening argument .

      Finally this evidence's probative value substantially outweighs any

prejudice towards Appellant . Appellant was the first to mention the incident

between him and K. E . during his opening argument and thus any prejudice

against him is low . Additionally, the evidence of Appellant's behavior with K.E .

was critical to understanding how the melee began. Thus, at retrial, the

evidence of Appellant's behavior towards K.E. would be admissible under KRE


                                          10
 404(b) (1) since it shows his motive for assaulting the victims and shows how

 the ultimate attack came about.

 B . Alleged gang tattoos

       Appellant next argues that the admission of evidence regarding his

 tattoos constituted improper character evidence. At trial, N .S . testified that

 Appellant had threatened to kill him and T.H . The Commonwealth

 subsequently asked N .S . if Appellant had any tattoos . N.S . replied that

Appellant had several tattoos which he thought indicated that Appellant was in

a gang. Appellant objected and requested a jury admonishment. The trial

court overruled the objection and provided no admonishment. Later in the trial

the Commonwealth asked Appellant if he had certain tattoos . Appellant

admitted he had the tattoos .

       Kentucky does not have a case on point for this issue . Other states,

however, have held that evidence regarding a defendant's tattoos is generally

irrelevant if the identification of the defendant is not in issue . State v . Steele,

510 N .W.2d 661 (S.D .1994). It is also error if evidence of a tattoo is used to

establish that the defendant acted in conformity with the message of the tattoo.

Boliek v. Delo, 912 F. Supp . 1199 (W. D . Mo .1995), rev'd due to procedural

default sub nom Boliek v. Bowersox , 96 F.3d 1070, 1071 (8th Cir .1996) . In

this matter the identification of Appellant was not in question . The evidence of

the tattoos could only be used to indicate that Appellant had acted in

conformity with his potential gang affiliations. Such use of this evidence is

prohibited under KRE 404(b) . At retrial, evidence regarding Appellant's tattoos
 should only be used for identification purposes if necessary and no testimony

 regarding his potential gang affiliation should be admitted .

 C . Evidence of Appellant's terroristic threatening of N.S . and T.H .

        Appellant next argues that the admission of testimony from N.S . and

Jackson that Appellant had threatened to kill N.S . and T.H . was error.

Appellant argues that the incident with N.S . and T .H. had nothing to do with

the ultimate assaults which occurred several hours later. Appellant believes

that this evidence implied that he had a violent nature and made the jury more

likely to reject his self-defense theory . Appellant did object to the substance of

N.S. and Jackson's testimony.

       This evidence is relevant to show the series of events which led to the

criminal acts later in the day. It indicates that the entire cause of the assault

is Appellant's interaction with K.E. This evidence shows the beginning of the

conflict with K . E.'s family members that helped lead to the later assaults.

Additionally, this evidence helps rebut Appellant's self-defense theory . The

evidence is probative because there is adequate testimony to support that an

altercation occurred between Appellant, T.H ., and N.S . Finally, this evidence is

not overly prejudicial. The evidence of this altercation is admissible under KRE

404(b) because it shows potential motive and because it is intertwined with

other evidence crucial to the Commonwealth's case . Thus, at retrial, evidence

regarding Appellant's confrontation with N .S. and T.H . is admissible .

D . Informing the jury that Appellant had a criminal record
       Appellant next argues that the trial court impermissibly admitted

 evidence regarding his past criminal record . Detective Lieutenant Doug Nelson

 of the Somerset Police Department testified for the Commonwealth . He

 testified that he received Appellant's name as a prime suspect in the attack

from police officers working the crime scene at the apartments . He then

testified that he went to the Pulaski County Detention Center and obtained a

photograph of Appellant . Appellant immediately moved for a mistrial which

was overruled . Appellant then requested an admonition which after some

deliberation was granted .

      The testimony of Detective Lieutenant Nelson was inappropriate . The

fact that Appellant's picture was at the local jail was not relevant to the trial

and could potentially prejudice the jury. Although the admonition was

sufficient to remove any prejudice, at retrial, this evidence should not be

admitted .

E. Notice of the Commonwealth's intent to use prior bad acts

      One of the headings in Appellant's brief mentioned that the

Commonwealth did not provide notice to him pursuant to KRE 404(c) that it

intended to introduce evidence under KRE 404(b) . However, Appellant's brief

fails to pursue this argument . Therefore we treat this allegation of error as

waived . Smith v. Commonwealth , 567 S .W.2d 304, 306 (Ky. 1978) .

                        V. Amendment of the Indictment

      Finally, we address Appellant's argument that the trial court erred when

it granted the Commonwealth's motion to amend the indictment . In the


                                         13
 original indictment, the grand jury charged, in a single count, that Appellant

 "[c]ommitted the offense of Assault, First Degree. . ." against four named

 persons . By the words "the offense of Assault, First Degree" it is clear that only

one offense was, charged . At arraignment, the Commonwealth's Attorney

moved to amend the indictment to state four separate counts of assault, each

relating to a single victim . The motion was granted .

       RCr 6 .18 provides that two or more offenses may be charged in the same

indictment "in a separate count for each offense, if the offenses are of the same

or similar character." In order to charge multiple offenses in a single

indictment, the Grand Jury must set forth each offense in a separate count .

The indictment returned by the grand jury contained only one count, and

therefore, under RCr 6.18, charged Appellant with but a single offense of first

degree assault, by stabbing any of the four person named therein.

       RCr 6.16 states in pertinent part :

       (t)he court may permit an indictment, information, complaint,
       or citation to be amended any time before verdict or finding if
       no additional or different offense is charged and if substantial
       rights of the defendant are not prejudiced.

The amendment of the indictment clearly added three additional offenses, and

therefore violates RCr 6 .16 . Since we are reversing on other grounds and

remanding for a new trial, we direct that, unless the matter is resubmitted to a

grand jury which returns an indictment that conforms to RCr 6 .18, Appellant

may be retried only for the single offense of assault, first degree .
                              VI . Conclusion

       Appellant's other allegations of error are either meritless or specific to the

prior trial and we will not address them since he is entitled to a retrial.

       For the foregoing reasons, the judgment and sentence of the Pulaski

Circuit Court is reversed and the case is remanded for a new trial .

      All sitting. Minton, C .J ., Abramson, Cunningham, Noble, Schroder and

Venters, JJ ., concur . Scott, J., concurs in part and dissents in part by

separate opinion .



COUNSEL FOR APPELLANT :

Thomas More Ransdell
Assistant Public Advocate
Dept. of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentuc

Henry Albert Flores, Jr.
Assistant Attorney General
Office of Criminal Appeal
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
                                                   RENDERED : MARCH 19, 2009
                                                        NOT TO BE PUBLISHED

                6*UFr-rMr (~Vurf              of ~irufurhv
                               2007-SC-000195-MR


 MARK A. COLYER, JR .                                                  APPELLANT



                 ON APPEAL FROM PULASKI CIRCUIT COURT
V.            HONORABLE JEFFREY THOMAS BURDETTE, JUDGE
                            NO . 06-CR-00203



COMMONWEALTH OF KENTUCKY                                                APPELLEE




              CONCURRING IN PART AND DISSENTING IN PART

                          OPINION BY JUSTICE SCOTT


       I must respectfully dissent in part as I do not believe the evidence here is

sufficient to support an inference that Appellant did not know what he was

doing, otherwise how could he have done it? Moreover, to the extent Mishler v .

Commonwealth, 556 S.W .2d 676, 680 (Ky. 1977) supports a voluntary

intoxication instruction under these facts, I would overrule it . Nor, do I believe

that the original indictment could have meant anything other than Appellant

stabbed four (4) people . Thus, I cannot agree that a new indictment is

required .
