             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 THE ISSUE
 BEFORE THECOURT. 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 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 17, 2015
                                                     NOT TO BE PUBLISHED

               S5up•rrittr Cittrf                 qfirr:11-furirisgr
                               2014-SC-000362-MR
                                                      u u LI
JULIUS TACKETT
                                                     1 1 AT            -1 to   Z_NA
                                                                       APPELLANT
                                                                                      C=c-00.2 NA-P. <




                   ON APPEAL FROM PIKE CIRCUIT COURT
V.                 HONORABLE STEVEN D. COMBS, JUDGE
                          NO. 13-CR-00176-001


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



               ' MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Julius Tackett, appeals from a judgment of the Pike Circuit

Court convicting him of third-degree burglary; theft by unlawful taking over

$500.00; first-degree criminal mischief; and being a first-degree persistent

felony offender. As a result of these convictions, Appellant was sentenced to

twenty years in prison. He appeals as a matter of right.

      For the reasons stated below, we affirm.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
      Joanne Mayhorn and her husband own a landscaping supply store in

Pikeville. They live in an apartment above the business. One night, about an

hour after midnight, Joanne, alone in the apartment, was awakened by noises

coming from the downstairs business. She looked out a window and saw

someone running toward the back of the building. She also saw another

person driving the store's front-end loader toward the back of the building.
Shortly thereafter, she heard cracking and popping sounds from inside the

store that sounded like wood breaking.

      Joanne called the police. She stayed inside the apartment but from that

vantage point she saw the perpetrators using the front-end loader to put the

store's office safe into the Mayhorns' SUV. A neighbor, Crystal Hamilton, saw

and heard the commotion from her home across the street from the Mayhorns'

store. She, too, called police. Hamilton testified that she saw three people

inside the store "tearing things up in there . . . moving stuff around [and]

destroying it."

      The police responded quickly and when police sergeant John Michael

Gabbard arrived, he saw two subjects fleeing from the scene on foot. He lost

sight of the fleeing suspects, but after following in the direction of their flight,

he came upon Appellant lying face down in a deep ditch or creek not far from

the Mayhorns' store. Appellant appeared intoxicated and was described by

officers as being "disorderly and aggressive" towards them. Gabbard

discovered in Appellant's pants pocket a pair of metal-cutting snips or shears.

Appellant claimed that he was fishing for crawdads, but he had no equipment

that might be associated with that activity.

      Soon after finding Appellant, Gabbard found Appellant's brother, Jacob

Tackett, lying under a bush nearby. Jacob also claimed to have been fishing,

and although he had a folding box cutter knife in his pocket, no fishing gear

was found. Jacob, too, appeared to be intoxicated and claimed to have walked

to the area from his home in Floyd County several miles away.


                                          2
       After apprehending the Tackett brothers, officers on the scene heard a

car alarm sounding nearby. When Trooper William Petry went to investigate

the alarm, he heard a vehicle start up and speed away. Petry pursued the

vehicle, a purple van, as it left Pike County and drove into Floyd County. Petry

lost sight of the van, but he eventually found it abandoned at the end of a dirt

road in Floyd County. The van was registered in the name of Shirley Tackett.

Apparently, no further investigation was done to locate Shirley Tackett, or to

determine if she was connected to Appellant Julius Tackett and his brother,

Jacob Tackett.

      Appellant and Jacob were tried jointly. Following the presentation of the

evidence the jury returned a verdict convicting Appellant of third-degree

burglary; theft by unlawful taking over $500.00; first-degree criminal mischief;

and of being a first-degree persistent felony offender. Appellant was sentenced

to twenty years in prison. This appeal followed.

      Appellant argues that the trial court erred: (1) by denying his motion to

dismiss the charges based upon the Commonwealth's loss of potentially

exculpatory evidence; (2) by denying his request for a facilitation instruction on

each of the charges; and (3) by failing to admonish the jury after the

Commonwealth engaged in prosecutorial misconduct during its closing

arguments. These arguments are addressed in turn.


                              II. MISSING EVIDENCE
      The defendant first contends that the trial court erred by failing to

dismiss the charges after the Commonwealth lost evidence which Appellant

                                        3
 claims was potentially exculpatory evidence; specifically, a plastic tag or fob

 found on a key ring at the scene (key tag). 1

        From their inspection of the scene, police determined that the

perpetrators had pried open the front doors of the business. Several wires

running to different parts of the building had been cut. Police surmised that

once inside the building, the perpetrators found the keys needed to operate the

front-end loader and the SUV.

        During the course of his investigation at the scene outside the building,

Detective Jimmy Anderson collected a number of items that might have

evidentiary value, including a pair of gloves and a key ring belonging to the

Mayhorns. On the key ring were two keys, which Anderson returned to the

Mayhorns, and a key tag. Anderson initially thought that the key tag may have

been handled by one of the burglars, and if so, it could have some DNA on it.

The key tag, however, was never submitted for DNA testing and was ultimately

lost.

        Appellant and the Commonwealth first learned about the key tag and its

disappearance on the morning of the trial. Appellant moved for a continuance

and for dismissal of the charges because of this lost "evidence." The trial court

denied the requested continuance but agreed that a mistrial might be required

if the missing key tag had exculpatory value. At a hearing held to resolve that

issue, Detective Anderson testified that he rejected the idea of testing the key



       1 The item was referred to in a variety of ways including "key tag" and "little
rubber tab."

                                             4
tag for DNA because he determined that the gloves found at the scene would

provide a better DNA test. He explained that his ability to have items tested for

DNA was limited and he believed that testing the gloves would be more likely to

provide a useful result. Although his written report indicated that the key tag

had been sent to the state police lab for testing, Anderson testified that his

report was incorrect in that respect. He described the mistake as an

administrative error. He was unable to determine what happened to the key

tag. The trial court denied Appellant's motion to dismiss. In connection with

this ruling, the trial court found that Detective Anderson had not acted in bad

faith in losing the key tag.

       The loss of potentially exculpatory evidence in the hands of the police

has possible due process implications. In McPherson v. Commonwealth, 360

S.W.3d 207 (Ky. 2012), we identified three elements that must be proven to

establish a due process violation with respect to missing evidence, which if

preserved and subjected to testing, might have produced results that

exonerated the defendant. First, it must be shown that the state acted in bad

faith in failing to preserve the evidence. 2 Second, it must be shown that the

evidence's exculpatory potential was apparent while it was still in the hands of

the police, i.e., before it was lost. And third, it must be shown that the lost



        2 Bad faith must be shown when the issue involves lost or missing evidence, but
not where it is alleged that the state suppressed or failed to disclose material evidence
with a known or readily apparent exculpatory quality. In those cases, the good or bad
faith of the prosecution is irrelevant: a due process violation occurs whenever such
evidence is withheld. Illinois v. Fisher, 540 U.S. 544, 547-548 (2004) (citing Brady v.
Maryland, 373 U.S. 83 (1963)).
evidence was to some extent irreplaceable.    Id. at 217 (citing Illinois v. Fisher,

540 U.S. 544 (2004) and California v. Trombetta, 467 U.S. 479 (1984)).

      Appellant's proof falls short of the standard required by McPherson.

First, he has not demonstrated any degree of bad faith to overcome Detective

Anderson's cogent and logical explanation for his decision not to send the key

tag to a laboratory for DNA testing: his ability to test items for DNA was limited

and the gloves were more likely to provide a meaningful result. No evidence

suggested that the unexplained loss of the key tag was anything other than an

inadvertence, especially since it was shown the testing lab never received it.

The trial court's finding that the loss of the key tag was not a product of bad

faith is supported by substantial evidence, is therefore not clearly erroneous,

and is thus binding upon our review. CR 52.01.

      Further, Appellant has failed to show that the exculpatory potential of

the evidence was apparent before it was lost. Indeed, the exculpatory potential

of the key tag is not apparent at all. It is not clear from the evidence that the

item was even likely to contain identifiable DNA. And, while a test indicating

the presence of DNA from Appellant or his brother would be highly indicative of

guilt, a test showing the absence of their DNA or the presence of DNA from

other individuals would have little or no exculpatory value since it is entirely

possible that the perpetrators never handled the key tag or that they did so

wearing the gloves that were also found at the scene . '




      Without evidence of bad faith on the part of the police and with 'no

apparent exculpatory value, the third element of the McPherson test — whether


                                         6
the lost evidence is irreplaceable — is insignificant. Accordingly, we are

satisfied that Appellant's due process rights were not compromised by the

failure of the police to preserve the key tag. The trial court did not err by

denying Appellant's motion to dismiss the charges as a result of the missing

key tag.


                            III. FACILITATION INSTRUCTIONS
       Appellant next contends that the trial court erred by failing to instruct

the jury on the crime of facilitation as a lesser included offense to each of the

principal charges. The trial court instructed the jury upon the theory of guilt

by complicity, but declined Appellant's request for an instruction on the lesser

offenses of facilitation.

      "It is the trial court's duty to instruct the jury 'on the whole law of the

case[.]"' Darcy v. Commonwealth, 441 S.W.3d 77, 86 (Ky. 2014) (quoting

Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)). "This duty

includes presenting the jury with instructions encompassing lesser-included

offenses that are supported by evidence of record." Id. (citing Swain v.

Commonwealth, 887 S.W.2d 346, 348 (Ky. 1994)). We review a trial court's

decision on whether to give a requested instruction for abuse of discretion.

Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).

      In Darcy, we noted the difference between complicity under KRS

502.020(1) and facilitation under KRS 506.080(1). A defendant is complicit in

the commission of a criminal offense when, with knowledge that another

person is committing or intends to commit the crime, he aids or assists that

                                         7
person with the intent that the crime will be committed. Facilitation, however,

occurs when the defendant, although aware of the principal's criminal actions

or intentions, provides the means or opportunity for him to commit that offense

but nevertheless, lacks the intention or is "wholly indifferent to" the

commission of that offense. 441 S.W.3d at 86 (citing Thompkins v.

Commonwealth, 54 S.W.3d 147, 150-151 (Ky. 2001)).

      As relevant here, the jury in Appellant's case was instructed on the

offenses of third-degree burglary, theft by unlawful taking over $500.00, and

first-degree criminal mischief, by "acting alone or in complicity with others." To

be entitled to facilitation instructions on these charges, Appellant must show

that the jury could have reasonably concluded from the evidence that he knew

1) that the actual perpetrators intended to burglarize the Mayhorns' building

and to unlawfully take and damage their property, 2) that he assisted the

principal actors by providing them with a means or opportunity to commit the

crimes, but 3) that he remained "wholly indifferent" about the completion of the

crime. Appellant has not met this burden.

      The evidence disclosed that all three persons seen by witnesses were

active participants in breaking into the store, carrying out the safe, attempting

to load it into the vehicle, and destroying the business premises. The evidence

strongly pointed to Appellant and his brother as two of those three. Their flight

from the scene and apparent attempt to hide from the police, and the

implausible explanation for their presence in the area of the crime, all evince a




                                        8
 consciousness of guilt and a culpable state of mind much greater than simple

 indifference about the commission of the crime.

       Moreover, there is no evidence at all from which a jury could reasonably

infer that Appellant had merely provided the actual perpetrators with a means

or opportunity to commit the crimes. A facilitation verdict on any of the

charges could result only from sheer speculation. The trial court did not abuse

its discretion by denying Appellant's request for facilitation instructions.


      IV. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS

      Appellant's final argument is that the trial court erred in failing to

admonish the jury to disregard the prosecutor's closing argument associating

Appellant and his co-defendant, Jacob Tackett, with the purple Nissan van

seen speeding away from the scene of the burglary.

      As previously noted, the evidence established that the registered owner of

the van was a person named Shirley Tackett. During his closing argument, the

prosecutor implied Appellant's connection to the van with this remark:

      Yes, there was a third person. Ms. Mayhorn told you there was.
      Crystal Hamilton told you there was. And that purple van. That's
      why they are charged in complicity with each other or others. And
      let's not forget that the purple van was registered to Shirley Tackett.

      Appellant contends that this statement was prosecutorial misconduct

because there was no evidence connecting the purple van to the burglary, and

more significantly, no evidence to show that Shirley Tackett was in any way

associated with Appellant Julius Tackett or his brother and co-defendant Jacob

Tackett. Appellant claims that by calling attention to the fact that the owner of


                                         9
the van had the same last name as the two defendants, the prosecutor invited

the jury to speculate about an incriminating connection.

       "[A] prosecutor is permitted wide latitude during closing arguments and

is entitled to draw reasonable inferences from the evidence." Driver v.

Commonwealth, 361 S.W.3d 877, 889 (2012) (citation omitted). "While the

prosecutor has a duty to confine his or her argument to the facts in evidence,

the prosecutor is entitled to draw reasonable inferences from the evidence,

make reasonable comment upon the evidence and make a reasonable

argument in response to matters brought up by the defendant."       Childers v.

Commonwealth, 332 S.W.3d 64, 73 (Ky. 2010) (citations omitted), overruled on

other grounds by Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013).

      The Commonwealth's reference to the purple van and its potential

connection with the crime falls easily within the wide latitude accorded to

prosecutors in closing arguments. Given the suspicious nature of the van's

rapid departure from the area, it is reasonable to infer that the driver of the van

was a likely participant in the crime and that Appellant and his brother had

acted in concert with that driver. The additional factor identified by the

prosecutor, that the van was owned by a person with the same surname as

Appellant, was also fair comment.

      Certainly, no presumption of a relationship arises from the mere fact that

Appellant and the van owner have the same last name, but the jury is not

required to ignore the coincidence. Appellant complains that the

Commonwealth should have obtained proof to dispel any question about


                                        10
Appellant's connection to Shirley Tackett, and hence to the suspicious van. We

agree that resolving that question may have been helpful. However, we also

recognize that the name of the van owner was relevant evidence, and whatever

probative weight that simple fact may have is not negated by the

Commonwealth's failure to conduct a more thorough investigation to tie down

any evidentiary "loose ends" associated with it.

      The reference to Shirley Tackett in the closing argument was just a

routine summation of the evidence that had been presented to the jury. We

find no error in it. The trial court correctly overruled Appellant's objection and

properly declined to admonish the jury to disregard it.


                                   V. CONCLUSION
      For the foregoing reasons, the judgment of the Pike Circuit Court is

affirmed.

      Minton, C.J.; Abramson, Cunningham, Noble, Keller, and Venters, JJ.,

sitting. All concur. Wright, J., not sitting.




                                         11
COUNSEL FOR APPELLANT:

V. Gene Lewter
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General




                                 12
