           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     THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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     THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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     UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 AFTER JANUARY 1, 2003, MAY BE CITED FOR
     CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
     OPINION THAT WOULD ADEQUATELY ADDRESS TBE 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   · BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 ALONG WITH THE
     DOCUMENT TO THE COURT AND ALL PARTIES TO THE
,· ACTION.
                                                  RENDERED: DECEMBER 14, 2017
                                                         NOT TO BE PUBLISHED




                   ~uptttttt (tl:ourf            nf ~tnfutku
                                  2016-SC-000133-MR


· TERRY O'BANNON                                                          APPELLANT


                   ON APPEAL FROM MUHLENBERG CIRCUIT COURT
v.                      HO~ORABLE BRIAN WIGGINS, JUDGE
                      NOS. 15-CR-00156 AND NOS. 15-CR-00234


 COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                        MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

          A circuit court jury convicted Terry O'Barinon 1 of first-degree assault,

tampering with physical evidence, and being a first-degree persistent felony

offender, recommending a sentence of twenty years, which the trial court

 accepted. Terry appeals the resulting judgment as a matter of right2, raising

three issues for review: the trial court's denial of Terry's motions for directed

verdict on his charges of (1) assault, (2) tampering with physical evidence, and

. (3) persistent felony offender. For the reasons stated in this opinion, we find no

 error in the trial court's rulings and affirm the judgment.




 We will refer to Terry O'Bannon as "Terry," because Terry's son, Tyson O'Bannon, is
 1
also mentioned several times in this opinion. ·
2    Ky. Const. § 110(2)(b).
                I. FACTUAL AND PROCEDURAL BACKGROUND.,
      Terry O'Bannon, the defendant in this case, Tyson O'Bannon, Terry's

son, and Whitney Smith, Tyson's girlfriend, stopped to get gas. Tyson, the

driver of the car, pulled up to one of the pumps. As Terry got out of the car to

pump the gas, he realized Tyson pulled up to the pump on the wrong side of

the car, so he told Tyson to turn the car around. As Tyson turned the car

around, Herbert Yates pulled in at the same pump.

      From this point forward, the facts of this case are in dispute. What can

be conclusively ascertained from the record is that a verbal exchange

immediately ensued between Yates and Terry. Terry directed Tyson to drive to a

different gas pump, and a further verbal exchange occurred as Yates and Terry

pumped gas into their vehicle.

      Yates reached inside his car for some~ing and Terry and Tyson believed

he reached for a firearm. Yates admitted that he owns a firearm, that he did

not have it with him on that occasion. After filling their car, Terry and Tyson

then drove away. As they drove away, Yates called 911 and reported Terry and

Tyson for reckless driving.

      Terry and Tyson returned to the gas station moments later, claiming that

they wanted to make sure they had paid for the gas. When Terry stepped out of

the vehicle, another verbal confrontation with Yates occurred, eventually

turning into a physical altercation. Numerous witnesses gave conflicting ·

testimony at trial about the altercation, including who was the initial aggressor

and what happened during the fight. At some point during the fight, Terry


                                        2
 produced a knife and cut Yate's arm, causing a seven to eight-inch laceration

 to the bone, cutting several muscles and severing the ulnar nerve. As Terry and

 Tyson drove a~ay, Terry threw his bloody shirt out of the car.

       Terry admitted at trial that he knew police were looking for him after

 leaving the gas-station melee, and he turned himself in four days later.

       Eleven days after the incident, Whitney Smith, Tyson's girlfriend, gave a

 statement to the police in which she stated that Terty threw a knife out the car

 window, but at trial she stated that Terry threw his bloody shirt out of the

 window and she assumed the knife was· inside the shirt. When the responding

 officer initially arrived at the scene of the crime, he failed to locate the knife at

 the gas station. After Smith gave her statement to the police, officers again

 searched unsuccessfully for the knife at the gas station. On cross-examination

 at trial, Terry stated that Tyson had purchased a knife for him that was very

 similar to replace one that he had "lost."

       At the close of the Commonwealth's case-in-chief, the trial court denied

Terry's motion for a directed verdict on the assault charge. At the clo&e of

· Terry's case-in-chief, Terry made a motion for directed verdict on the

 tampering-with-physical-evidence charge, stemming from the accusation that

Terry had attempted to dispose of the knife used to cut Yates by throwing it out

 the window. The trial court denied that motion.

       Regarding the persistent felony offender charge, Terry did not move for

 di~ected verdict at the close of the Commonwealth's case or his own case-in-

 chief in the penalty phase of the trial. While the trial court was reading the

                                           3
persistent felony offender sentencing instructions to the jury, the

Commonwealth asked to approach the bench. The Commonwealth then moved

for leave of court to reopen the evidence because the Commonwealth

recognized that it had failed to establish when Terry had been placed on parole

or probation, an element necessary to prove the charge ofpersistent felony

offender. Terry objected to allowing the Commonwealth to reopen the proof, but

the trial court overruled the objection and allowed the Commonwealth to recall

its witness to establish ~hen Terry was placed on parole or probation. Terry

then moved for directed verdict on the persistent felony offender charge, which

the trial court denied. ·

      The jury found Terry guilty of first-degree assault, tampering with

physical evidence, and of being a first-degree persistent felony offender. The

jury recommended a    twenty~year   sentence, which the trial court accepted and

entered the judgment accordingly. Terry then appealed to this Court.

                                    II. ANALYSIS.

      As a preliminary matter, Terry sufficiently preserved all three issues

before this Court. Because all three issues involve the alleged failure of the trial

court to grant a directed verdict, "On appellate review, the test of a directed

verdict is, if under the evidence as a whole, it would be clearly unreasonable for

a jury to find guilt, only then the defendant is entitled to a directed verdict of

acquittal. "3 So we shall only overturn the trial court's denial of Terry's motions


                                                              '-
3Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v.
Sawhill, 660 S.W.2d 3, 5 (Ky. 1983) (quoting Trowel v. Commonwealth, 550 S.W.2d
530, 533 (Ky. 1977)). ·
                                         4
for directed verdict if it was clearly unreasonable for the jury to find Terry

guilty of his charges.

   A. Assault Charge.
      Terry argues that, based on the evidence adduced at trial, it was clearly

unreasonable for the jury to find hirri guilty of first-degree assault because the
                                             I

jury should have found that he was privileged to act in self-protection and in

the protection of others.

      KRS 503.050(1) and (2), the statute establishing the self-protection

defense, allows for the use of physical or deadly force by a defendant upon

. another person when the defendant believes that such    fore~   is necessary to

protect himself against the use or· imminent use of unlawful physical, or

deadly, force by the other person. And KRS 503.070(1-2), the statute

establishing the third-party protector defense, allows for the use of physical

and even deadly force by a defendant upon another person if the defendant

believes that such force is necessary to protect a third person against the us.e

or imminent use of unlawful physical or deadly force. But KRS 503.060(3)

prevents a defendant from invoking the self-protection defense if the defendant

was the initial physical aggressor, unless: (1) the initial aggressor used non-

deadly physical force and was responded to with deadly force; or (2) the initial

aggressor withdraws from the encounter and effectively communicates to the

other person his intent to do so, but the other individual continues or

threatens the use of unlawful physical force.




                                         5
      In this case, the trial court instructed the jury on first-degree assault,

second-degree assault, fourth-degree assault,   self-prote~tion,   protection of

another, and initial aggressor. Numerous witnesses provided testimony

supporting the finding of the jury that the self-protection and protection-of-

others defenses did not apply to justify Terry's actions. Although other

witnesses provided testimony that would have supported a finding that Tercy

acted in self-defense or for the protection of another, this   ~foes   not make the

findings by the jury unreasonable.

      Summarily, no matter the jury's verdict under these instructions, we

would be constrained to recognize the jury's verdict as reasonable. This case is

a classic example of the reason our legal system entrusts the jury with the
                                        ~




important task of determining a defendant's guilt or innocence. Tqis case

involves conflicting accounts of the day's events from the point of view of the

defendant, victim, and numerous other witnesses. Many of the accounts differ,

sometimes dramatically, from each other. To put this case in perspective: the

defendant, the victim, and six other witnesses provided testimony as to the
            '
day's events, ranging from accounts that Terry was the initial aggressor, to

Yates being the initial aggressor, to Tyson joining in the fight and actually

acting as the initial aggressor, to Terry believing.Yates possessed a firearm even

though it   app~ars   Yates did not, to Terry and Tyson throwing several punches

before Yates even reacted, to both Yates and Terry egging each other on in the

fight, and the differing accounts continue.



                                            6
         We must ultimately conclude from the evidence that the jury did not act ·

unreasonably when it found Terry guilty of first-degree assault. The jury heard

testimony from witnesses stating that Terry was the initial aggressor and

escalated the fight by using a knife. The jury also heard testimony from Terry

and Tyson that they believed Yates had a gun; however, the jury simply did not

believe Terry and Tyson, as Terry's conviction reflects. It is the jury's

prerogative to act as the ultimate fact-finder and determ:lnant of a witness's

credibility4, and because the jury's conclusion is adequately factually

supported in this record, we cannot deem it to be unreasonable. Based on all

the evidence adduced at trial, the jury's rejection of the self-protection and

protection-of-others defenses was not unreasonable. So we.affirm the trial

court's decision to deny Terry's motion for directed verdict regarding his

assault charge.

     B. Tampering with Physical Evidence Charge.
        Terry argues that the jury unreasonably convicted him of tampering with

physical evidence, specifically, that he discarded the knife he used to cut Yates

by throwing it out the car window.

        This charge stemmed from Whitney Smith's statement to police that she

saw Terry throw the knife out the window as their car was leaving the gas

station. But at trial, Smith stated that she actually saw Terry throw his bloody




4   Potts v. Commonwealth, 172 S.W.3d 349, 349-51 (Ky. 2005).

                                           7
 shirt out the window and simply assumed that the knife was inside. As stated,

 two separate investigations by officers failed to locate the knife.

       At trial, the defense introduced as evidence what Terry      clai~ed   to be the

 actual knife he used to cut Yates. Terry testified that he kept the knife in his
                                                .         .
 pants pocket after the altercation. But on cross examination,
                                                   .   .       Terry stated that

 Tyson p.ad bought a knife for him that was very similar to the one that he had

 "lost." It appears that the only proof that the knife introduced at trial was the

 same one as the one used to cut Yates is Terry's testimony. Based-on the

. evidence adduced at trial, the jury found Terry guilty of tampering with

 .evidence by throwing the knife from the vehicle.
          '




       KRS 524.100 provides that a person is guilty of tampering with physical

 evidence when, believing that an official proceeding is pending or may be

 instituted, he either: (1) destroys, mutilates, conceals, removes, or alters

 physical evidence which he believes is about to be produced or used. in the

 official proceeding with intent to impair its verity or availability in the official

 proceeding; or (2) fabricates any physical evidence with intent that it be

 introduced in the official proceeding or offers any physical evidence, knowing it

 to be fabricated or altered.

       Our decision in Mullins v. Commonwealth5 provides guidance on this

 issue. In Mullins, we stated, "The Commonwealth cannot bootstrap a tampering

 charge onto another charge simply because a woefully inadequate effort to




 s 350 S.W.3d 434 (Ky. 2011).

                                            8
locate the evidence was made by the police."6 Additionally, we stated that a

defendant walking away from the scene of the crime in        pos~ession   of evidence

does not necessarily lead to a violation; in fact, charging someone with a

violation of tampering with physical evidence "would be an impermissible

'piling on"' of charges. 7 However, we went on to say, "This is not to say.that

failure to locate evidence means that a defendant cannot be charged and

convicted of tampering when there is evidence of an active attempt by the

defendant that demonstrated intent to impair ·the availability of the evidence. "8

            Based on the evidence adduced at trial, and our decisions in Mullins and

Nourse, we cannot say it was unreasonable for the jury to find that Terry

tampered with evidence by throwing the knife .used to ctlt Yates out the

window. As Mullins states, even though officers were unable to find the knife

that T~rry threw out the window, the officers' searches were not claimed to be

inadequate, and other evidence exists to· support a finding that Terry did throw

the knife out the window in an attempt to "impair the availability" of the knife.

Whitney Smith's original statement to the police that Terry threw the knife out

the window, coupled with Terry admitting on cross examination that Tyson had

purchased him        a knife that was very similar to replace one that he had "lost,"
and the fact that Terry's own testimony was the only proof Terry       ~sserted,   and

now asserts, to substantiate his claim that the knife introduced at trial is the


6   Id.   at 444.
1 Id. at 443.
a Id. (citing Commonwealth v. Nourse, 177 S.W.3d 691 (Ky. 2005) (throwing bullet
casings down a drain)).

                                             9
 same knife he used to cut Yates, all could reasonably convince a jury that Terry

 really did throw the knife out the window that day, even though police were

 unable to locate it. As such, the jury's findings were not unreasonable, and we

 affirm the trial court's decision to deny Terry's motion for directed verdict on

 the tampering-witl?--physical-evidence charge.

    C. Pe.rsistent Felony Offender.
       Terry argues that the trial court erred by denying_his motion for directed

 verdict regarding the persistent felony offender charge. It appears that Terry's

 argument here is actually two-fold: (1) the trial court abused its discretion by

 allowing the Commonwealth to reopen its case upon discovering that it had

 failed to establish when Terry had been placed on parole or probation, an

. essential element of his charge of persistent felony offender; and (2) the trial

 court erred when it denied Terry's motion for directed verdict on the persistent

 felony offender charge after the Commonwealth's witness testified to establish

 when Terry was placed on parole or probation.

       During the Commonwealth's case-in-chief during the penalty phase, the

 Commonwealth called the circuit clerk as a witness to establish the elements of

 the persistent-felony-offender charge. The clerk testified that Terry was

 convicted of possession of a firearm by a convicted felon on October 2, 2009.

 But, the Commonwealth failed to ask the clerk when Terry was discharged

 from parole or probation on the 2009 conviction. This meant that the

 Commonwealth failed to prove the persistent-felony-offender element that Terry

 "was discharged from· parole or probation from the sentence imposed on him


                                          10
pursuant to said prior conviction no more than five (5) years before· August 12,

2015." 9

        After both sides had closed their cases in the penalty phase, the trial

court read the sentencing instructions. As the trial court read the persistent

felony offender sentencing instructions to the jury, the Commonwealth

apparently realized it had failed to ask the clerk when Terry was placed on

probation or parole and asked the court to approach the bench. At      th~   bench,·

the Commonwealth· moved to reopen the case because it had failed to establish

when Terry     h~d   been placed on parole or probation, to which Terry objected.

The trial court granted the Commonwealth's motion.

        The clerk was then recalled and testified that Terry was released on

supervised releas.e for three years, within the five-year time period prescribed

by the persistent-felony-offender offense. Terry then· moved for directed verdict,

which was denied by the trial court. The jury found Terry guilty of being a first-

degree persistent felony offender.

         Kentucky Rule of Criminal Procedure (RCr) 9.42 prescribes the order of

trial. Of particular relevance in this case, RCr 9.42(e) states, "The parties

respecti~ely may offer rebutting evidence, unless the court, for good reason in

furtherance of justice, permits them to offer evidence-in-chief." We review




9   See KRS 532.080(3)(c).

                                           11
decisions by the trial court of this nature under an abuse of discretion

standard.10

         In both Marshall and Haynes, we held that the trial court did not abuse

"its broad discretionary power" by permitting the introduction of evidence-in-

chief, after both sides had closed their cases, to establish that the previous

crimes committed by the defendants were felonies.11 We termed the

adjudication of a persistent felony offender charge a "bifurcated" stage of a

defendant's criminal proceedings, separate from adjuc:lication of the underlying

substantive criminal charge, like robbery.12

         Terry relies on Davis v. Commonwealthl3 in support of his argument. In

Davis, the trial court allowed the Commonwealth to reopen its case to provide

previously unavailable testimony supporting a murder charge conviction

during rebuttal and after the close of all the evidence. Terry relies on our

following statements in Davis:

         While a party should not normally be permitted to offer additional
         testimony after announcing the conclusion of its evidence, and
         certainly should be precluded from introduction of evidence-in-
         chief after announcing that no re_buttal evidence will be presented,
         we cannot overlook the probative nature of the evidence so offered
         and its prior unavailability. If the record demonstrated any bad
         faith on the part of the Commonwealth, we would not hesitate to·
         hold that the admission of such evidence amounted to an abuse of
         the trial court's discretion. This not being the case, however, we


10Marshall v. Commonwealth, 625 S.W.2d 581, 583 (Ky. 1981); Haynes. v.
Commonwealth, 625 S.W.2d 575, 576 (Ky. 1981).
11   Marshall, 625 S.W.2d at 583; Haynes, 625 S.W.2d at 576.
i2   Marshall, 625 S.W.2d at 583; Haynes, 625 S.W.2d at 576.
13   795 S.W.2d 942 (Ky. 1990).

                                           12
           find no abuse of the .trial court's discretion in its application of RCr
           9.42(e). 14

           We find that the situation in this case is more akin to our holdings in

Marshall and Haynes than in Davis. Although our statements in Davis would

seem to suggest a preclusion of the Commonwealth's evidence-in-chief in this

. case, our statements were made in the context of attempting to admit evidence-

in-chief during rebuttal and after the close of the case for the purpose of

obtaining a convictibn for intentional murder. In this case, just like in Marshall

and Haynes, the trial court permitted the Commonwealth to reopen its case for

the purpose of permitting evidence relating to a persistent-felony-offender

charge, not the underlying substantive criminal charge of assault. So because

of the trial court's traditional broad discretion in this regard, and because of

our holdings in Marshall and Haynes, we find that no error occurred with

respect to the trial court's decision to allow the Commonwealth to reopen its

case for the purpose of providing evidence-in-chief as to when Terry had been

placed on pifrole or probation.

          Terry's argument that the trial court erred when it denied his motion for

directed verdict on this charge is supported by this same rationale. In addition,

the-Commonwealth established all the necessary elements of a first-degree

persistent-felony-offender conviction. So the trial court did not err when it

denied Terry's motion for a directed verdict because it was not unreasonable for

the jury to find Terry guilty of being a persistent felony offender.



14   I<;l.. at 947.

                                             13
                                 III.   CONCLUSION.

      For the reasons stated above, we find no error in the trial court's rulings

in this case and affirm the judgment.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Mark Barry
Assistant Attorney General




                                        14
