               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          NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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   THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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   UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·.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 ~OR
   CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
   OPINION THAT WOULD ADEQUATELY· ADDRESS THE ISSUE
                                    J

   BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
   BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED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 ALO.NG WITH THE
 . DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
   ACTION.
                                              RENDERED: NOVEMBER.2, 2017
                                                     NOT TO BE PUBLISHED

                 $Supreme <tTnurf nf ~enfutku

                              2016-SC-000410-MR



 ROBERT MARKHAM TAYLOR                                               APPELLANT.


                  ON APPEAL FROM FAYETTE CIRCUIT COURT
v.                 HONORABLE THOMAS L. CLARK, JUDGE
                             14-CR-OO 184-002


COMMONWEALTH OF KENTUCKY                                              APPELLEE




                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      On June· 1s, 2016; a Fayette County jury convicted Robert Markham
             .                     .
Taylor of Murder, Kidnapping, and Tampering with    Physic~   Evidence. The

'jury recommended sentences of twenty-two years each for the Murder and

·~dnapping charges and five years for Tampering with· Physical Evidence, to be ,

served consecutively for a total sentence of forty-nine years. The court
                               )                                           .



sentenced Taylor per the jury's recommendation, and this appeal followed as a

matter of right. Having reviewed the arguments of the parties, we affirm the

judgment of the Fayette Circuit Court.
                                  I.     BACKGROUND

         On December 20, 2013, Alex Johnson was killed and his body placed in

a barrel, which was then left in the Kentucky River near Interstate 75. The last

two people to see Johnson alive were Taylor and Timothy Ballard (a.k.a. "Tiny").
                         .                       .
What emerged at trial were two conflicting narratives as to the final Hours of

Johnson's life.

A.       Ballard's Testimony.

         Ballard testified for the Commonwealth 1 that he and Taylor met while

working at a bar in Lexington; Ballard worked as a bouncer and Taylor as a

bartender. Ballard had also worked for Taylor as a part-time chauffeur. At

Taylor's request, Ballard used a borrowed truck to pick up an industrial, .fifty-

five gallon barrel from Taylor's residence and took it to Taylor's commercial

garage. Ballal-c;j. drove Taylor to ·Johnson's home the next evening, December

20, 2013, to pick Johnson up and take them both to Trust Lounge, a nightclub

in the area.

         Johnson sat in the front passenger seat, with Ballard driving arid Taylor

sitting directly
           .     behind Johnson. As Ballard drove away from Johnson's
                                                            .         home,

Taylor placed Johnson in a choke hold from behind. Taylor pulled Johnson

into the backseat and began beating him. Two people called 911, reporting

that there was an altercation inside a vehicle on the street where Johnson

iived. One reported "blooqcurdling screams" from the vehicle. The same caller


     .  Pursuant to. a plea agreement, Ballard entered a guiltjr plea to Kidnapping and ·
         1

Tampering with Physical Evidence and was, subsequent to Taylor's trial, sentenced to
twenty-five years to serve.      ·                        ·
                                           2
also reported that the driver was "a big guy" and the two in• the back were the

ones involved in the fight.

       Ballar.d stopped the vehicle on the street after someone (he could not

identify whether it was Taylor or Johnson) &aid to "stop the car." Taylor got out

of the car and Ballard went to see what was happening in the back of the

vehicle. Taylor pulled Johnson· out of the car and went to the driver's seat.

Ballard tried to help Johnson but Johnson hit him so Balla.id proceeded to

punch him at least twice and forced Johnson back into the vehicle's backseat.

.Ballard tried to get in   th~   backseat as well but could not fit.   2   Taylor began

driving away while Ballard's legs were still hanging out of. the vehicle.
                  .                     .                          -

       Taylor pulled into an empty lot on a dead-end street. He got out of the

vehicle, went to the backseat, and began hitting Johnson once more. When

Taylor finally stopped hitting Johnson, he returned to the passenger seat and

Ballard drove· them away. Ballard heard Johnson's last gurgling breath as they

left the lot.

     . Ballard drove the car to Taylor's garage, and the two men placed

Johnson's body in the barrel. Using the borrowed truck, Ballard took the body

to the Kentucky River and let it roll in from the truck bed. Taylor cleaned up

the vehicle they'd used that evening while Ballard was gone. ·Both men then

went to Taylor's apartment to change.clothes. They went to Johnson's .

apartment and Taylor recovered approximately $36,000 in cash, twenty-six



      2 At the .time of the murder, Ballard ~as six-foot-five inches tall and weighed
four hundred twenty-five pounds.                            ·
                                              .3
 pounds of m~ijuana, and some psilocybin mushrooms. Taylor divided the

 . money with ·Ballard.

        Ballard drove them to Trust ~unge, where Taylor socialized, danced,

 and mingled for a couple of hours, as seen on Trust's surveillance video.

 Ballard ultimately confessed on January 20, 2014, after investigators

 confronted him with cell phone records, surveillance video, and other evidence.

 He led them to where he had dumped Johnson's body.

 B.    Taylor's Testimony. .

       Taylor testified at trial but told a markedly different story. Taylor

 explained that he had known Johnson because they were both rt1arijuana

 dealers, and Johnson had been Taylor's supplier. He described Johnson as a

 good friend who was planning to hand over his drug dealing business to him.

 Taylor agrees that, on the night of December 20, 2013, Ballard drove them to

 pick up Johnson at his apartment to go to Trust but disagrees about what

 transpfred from that point.

       Taylor had ingested a hallucinogenic drug known as "Molly,"      a~d    brought

 some to share with Johnson that evening. He and Johnson got in the car with

 Ballard; Ballard was driving, Johnson was in the front passenger seat, and

. Taylor was in the backseat. Johnson made an off-hand remark to Ballard,

 something along the lines of "what's up,    b~tch?"   and Ballard immediately began

 assaulting Johnson while he was still driving the vehicle. Taylor was texting

 and did not notice what was happening until Ballard had already hit Johnson

 eight or nine time_s; · Johnson was screaming the entire time of the assault.
                               .   .


                                         4
       Ballard stopped the\car, went to the passenger seat, and proceeded.to hit

 Johnson until he stopped screaming. He said to John~on, "I've got witn~sses

 now.· I mi$ht as well kill you." Johnson was slumped over, partially hanging

. from the vehicle. Ballard could not get him back into the vehicle so he drove

 off while Johnson's legs were still hanging outside the car door. Bailard

 stopped again and Taylor pulled Johnson from the car. Johnson was still

 breathing.and Taylor said they should take. Johnson ·to the hospital. Taylor got

 into the driver's seat but was disoriented. He turned around and saw that

 Ballard was on top of Johnson in the back .seat, assaulting him again. Taylor

 heard Ballard choking Johnson to death.

       Taylor stopped the car, got out of the vehiele, and tried to get Ballard off

 Johnson. He hit Ballard maybe fifteen times until Ballard finaily released

Johnson. Taylor pulled Johnson from the vehicle and tried to resuscitate him

 but was unsuccessful. Taylor testified that Ballard threatened him; Taylor
              .                        .
 claims he was highly intoxicated and did not know wh~t to do.

      ·Fro~ th~re,   Taylor admitted: he and Ballard took Johnson's body to his

garage; put his body in the 55 gallon barrel; and Ballard· disposed of the body

in the Kentucky River. Taylor admitted to cleaning out his car and having his

garage cleaned as well. He also testified that he ingested i:nore Molly that

evening, and he and Ballard went to Trust, where he socialized, d~ank, an,d

danced.

      It is undisputed that Taylor was arrested in Texas, approximately two

miles from the Mexican border on January 22, 2014. He had in his possession

                                           5
 about $10,000 in cash, about two pounds of marijuana, three cell phones,

 clothing, two handguns, ammunition, and
                                     "--
                                         copies of two books, The. Prince and
                                                                         .




 The Smuggler's Ghost: when marijuana turned a Florida Teen into a milli<Jnaire

 fugitive.

        In this appeal, Taylor asserts that the trial court erred by: not finding

 that his case was subject to the kidnapping exemption of Kentucky Revised

 Statute (KRS) '509.050; admitting several pieces of evidence contrary to

 Kentucky Rules of Evidence (KRE) 403 and 404(b); admitting text messages

. and video that had not been.properly authenticated; refusing to allow a doctor

 to testify about' a mental .health evaluation of Ballard; and refusing to d~sigriate

 ·a particular juror as the. alternate. We address each of these issues below
                                                                            I
                                                                              and

 relate further background as necessary.

                                    II.   ANALYSIS

 A.     Taylor was not entitled to the kidnapping exemption.

      · KRS 509.050 states:

              A person may not be convicted of... kidnapping when his .
              criminal ·purpose is the commission of an offense defined
              outside this chapter and his interference with the victim's
              liberty occurs immediately· with and incidental to the
              commission of that offense, unless the interference exceeds
              that which is ordinarily incident to commission of the offense
              which is the objective of his crimi:p.al purpose.

 When determining the applicability of the kidnapping exemption, "[t]his      ~ourt


· employs a three-prong test." Wood v. Commonwealth, 178 S.W.3d 500, 515

 (Ky. 2005) (citing Griffin v. . Commonwealth,
                                  .
                                               576 S.W.2d 514 (Ky.. 1978)).
                                                                 ;




              First, the u~derlying ·.criminal purpose · ·must be the
              commission of a crime defined outside of KRS 509. Second, ·
                                          6
             the interference with the victim's liberty must have occurred
             immediately with or incidental to the commission of the
             underlying intended crime. Third, the interference with the
             victim's liberty must not exceed that which is ordinarily
             incident to the commission of the underlying crime ... All three·
             prongs must be satisfied in order for the exemption to apply.

Id. (internal citations omitted) ..   "The~ applicability   of the'. .. statute is   dete~mined


as a matter of law." Arnold v. Commonwealth, 192 S.W.3d 420, 426 (Ky. 2006)

(citing Calloway v. Commonwealth, 550 S.W.2d 501, 502-03 (Ky . .1977)). This

Court has also held that "[tJhe kidnapping exemption statute is to be strictly

construed and the burden is upon a defendant to show that it should apply."

Arnold, 192 S.W.3d at 326 (quoting Murphy v. Commonwealth, 50 S.W.3d 173,

180 (Ky. 2001)). "The trial court's decision will not be disturbed unless there is

an abuse of discretion." Arnold, 192 S.W.3d at 326 (quoting Murphy, 50

S.W.3d at 180).

      The Commonwealth has conceded that Taylor met his burden in showirig

that the first and second elements in thfs three-prong tes~ are met. Thus, the

only point of contention between the parties is whether the third element has ·

been met. "Historically, this has been the most important prong of the

exemption test." Stinnett v. Commonwealth, 364 S.W.3d 70, 78 (Ky. 2011)

(internal citations omitted).

      "[A] case-by-case analysis is required depending on the specific facts of a

given case" in determining. the applicability of the exemption. Id. at 77 (citing

Gilbert v. Commonwealth, 637 S.W.2d 632, 635 (Ky. 1982)). In Wood                    v.
Commonwealth, the defendant began his assault of his victim on the street,


                                             7
 while the victim was in a vehicle with a friend. 178 S.W.3d at 505. Wood shot
                                                                              \

 the victim and a struggle ensued. Id. Ultimately, the friend.fled to find help.

 Id. Wood removed the victim from.the vehicle and put her into his car and

 ."drove away with her legs hanging out of the back driver's side door and

 dragging on the ground." Id. He stopped in a residential yard and, after a

 hostage situation with the homeowner, was arrest.ed. Id. Medical evidence

 established that th'e victim died en route to this residential yard. 'see id. at

 507. This Court held that "[t]l_le injury ultimately resulting in [the victim's]·

 death had been inflicted. It was unnecessary to the commission of murder to

 pull [the victim] into another vehicle and drive some distance away.", Id. at

 515. "The interference with her liberty greatly exceeded what was necessary to

 murder her, and at a great cost." Id. Instead of being given an opportunity to

 "receive[] medical attention... she expired in.the back seat of Wood's car." Id.

       Ballard testified that he and Taylor drove Johnson to the empty lot where

 Taylor continued to beat Johnson, and then they drove away from that location

 and Johnson gave his last "gurgling" breath.· According to Ballard, he and

Taylor kept Johnson captive after the assault ended, but before Johnson's

 death. Even Taylor admits that
            "               .
                                they forced Johnson back into the vehicle two
                                 '                ,




 separate times before John~on finally su_ccumbed to his injuries.

       Like Wood, this restraint was unnecessary to the completion of the

murder and exceeded what was necessary to complete the underlying offense.

: Like iri. Wood, Ballard and Taylor could have left Johnson on the street .or in

the empty lot where he was beaten. But according to both Ballard's and

                                          8
Taylor's· testimony, they put Johnson back into the car and took him away

from the lot. Both men testified that it was after this point that yohnson

ultimately died.

      The exemption must be narrowly construed. See Arnold, 192 S.W.3d at

326 (quoting Murphy, 50 S.W.3d at 180). Under these facts, and narrowly

construing the exemption as we must, the trial court did not abuse its

discretion in refusing to apply the kidnapping exemption.

      Taylor also claims error in the trial court providing an ihstruction on .

kidnapping to the jury because the kidnapping exemption applied. Because we

hold that the trial court correctly found that the exemption did npt apply, we

discern no error in the court's instruction on kidnapping.

B.    The trial.court did not abuse its discretion under KRE 403 or 404(b).

      On appeal, Taylor argues that the cell data and text messages, testimony

about and video of Taylor at Trust Lounge after the murder, evidence of guns,

books, and designer clothing found in Taylor's possession when he was

arrested, and the barrel in which Taylor arid Ballard placed Johnson's body

were admitted in violation of KRE 403 and/or KRE 404(b). We perceive no

reversible error in the admission of this evidence.

      Under KRE 401, "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" is relevant.

"This standard is powerfully inclusionary and is met upon a showing of

minimal probativeness." Roe v. Commom'!ealth, 493 S.W.3d 814, 820 (Ky.

                                        9
 2015) (internal citations omitted). However, even though "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.

       KRE 404(b) also limits admission·of "[e]vidence of other crimes, wrongs,

 br acts," stating that it "is not adID.issible to prove the character of a person in

 order to show action in. conformity therewith." However, the rule does allow

 admission of the evidence "[i]f offered for some other purpose, such as proof of

 motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

 of mistake or acddent." KRE 404(b).. "For slich evidence to be admissible,

 however, it must be relevant for .at least one of these . other purposes,
                                                                 .
                                                                           and its

 probative value on that issue .must exceed the prejudicial effect of its character-

 proving aspects." Dickerson v. Commonwealth, 486 S.W.3d 310, 320 (Ky. 2016)
               /


·(citing Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994)).

       The trial court's decisions in these areas are granted "broad discretion"

                                                           - be.en clear abuse
 and these decisions should only be rtversed "where there has              '



. of discretion." Page v. Commonwealth, 149 S.W:3d 416,. 420 (Ky. 2004) (citing

Parti'f! v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996)). "The test for an

abuse of discretion is whether the trial judge's decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles." Webb v.

·Commonwealth, 387 S.W.3d 319, 324 (Ky. 2012) (quoting Anderson v.



                                          10
Commonwealth, 231 S.W.2d 117, 119 (Ky. 2007) (citing Goodyear Tire &

Rubber Co. v. Thompson, °Il S.W.3d 575, 581 (Ky. 2000))~

       With the preceding/in mind, we now address each of Taylor's arguments.

1.     Cell Data and Text Messages

      The Commonwealth's theory of the case was that Taylor killed Johnson

to take over Johnson's drug business. ·Detective Joe 'sisson testified for the

Commonwealth for three hours about Taylor's and Ballard's cellphone data and

text messages ... The text messages were, in large part; messages between Taylor

and his customers and were offered to prove Taylor's existing marijuana

dealing business. The Commonwealth argued these messages and cell phone

activity proved: the existence of Taylor's business, providing the motive for

killing Johnson; described the car in which Taylor was apprehended; and,

through messages and calls from Taylor to Johnson after Johnson's death,

·proved Taylor's intent to cover up his crime.

      The first determination to be made is whether this evidence is relevant.

"[R]elevance is established by any showing of probativeness, however slight."

Webb, 387 S.W.3d at 325 (quoting Springer v. Commonwealth, 998 S.W.2d 439,

449 (Ky. 1999)). The evidence is clearly relevant. It ties Taylor.to the getaway

vehicle. It provides the motive for the killing. It establishes how Taylor and
                          .                                   .
Johnson knew each other, as well as Ballard's involvement. Thus, the evidence

meets this "slight" showing to pass mu.ster under KRE 401.

      The next, and more challenging, determination is whether, under KRE

403, probativeness of the     evid~nce   outweighed its prejudice. At the outset; we·

                                            11 .
must reiterate that KRE 403 "does not offer protection against evidence that is

merely prejudicial in the sense that it is detrimental to a party's case." Webb,

387 S.W.3d at 326 (citing Carterv. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980);

Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006)).

Instead, the evidence must be unduly prejudicial, which occurs when it

"'appeals to the jury's sympathies, arouses its sense of horror, provokes its

instinct to punish,' or otherwise 'may cause a jury to base its decision on

something other than the established propositions in the case."' Carter, 61 7

F.2d at 972 (quoting 1 J. Weinstein & M. Berger, Weinstein's Evidence P

403(03), at 403-15 to 403-17 (1978)).

       Taylor argues first that, "[b]eing forced to listen to three hours of barely

relevant cell phone data and text messages necessarily provoked the jury's

instinct to punish.someone." The brunt of this argument is that being forced to

listen to evidence somehow created ·a sense of ire intense. enough to force the

jury to lash out at and punish Taylor. Under the facts of this case, this Court

is disinclined to succumb to the cynicism of this argument. The evidence may

have been monotonous; however, there is nothing else in the record to prove

that the mere amount of evidence alone created undue prejudice. 3




      3  We are also unpersu.aded by Taylor's argument that jurors falling asleep leads
to the conclusion of undue prejudice. If anything, we find this shows the evidence did
not"arouse [the jury's] sense of horror, provoke[] its instinct to puriish," or otherwise
cause it to act contrary to law. See Carter, 617 F.2d at 972 (quoting 1 J. Weinstein &
M. Berger, Weinstein's Evidence P 403(03), at 403-15 to 403-17 (1978)).

                                           12
       Taylor also argues that the unduly prejudicial impact should be inferred

due to the jury's recommendation of two twenty-two year terms, to be served

consecutively. However, the distinction between the case cited by Taylor to·

support thi::? proposition and his own case is significant. In the case cited by

Taylor, the defendant was sentenced to the maximum allowable penalty. See

·Cargill v. Commonwealth, 528 S.W.2d 735, 737     (Ky~   1975). In fact, the Court

specifically stated that "[p]rejudice may be inferred from the fact that Cargill

received the maximum penalty on the charges of robbery, as well as the drug

ch~ge."     Id (emphasis added). Here, Taylor was     sen~enced   to only two years

more than the minimum sentence on each charge. This distinction is

paramount. Thus, we ·are unpersuaded to find prejudice from the jury's

sentence.

      Finally, Taylor argues that this particular evidence should have been

excluded under KRE 61 l(a). The Court is similarly unpersuaded by this

method of attack. There is no evidence in the record that the court failed to

"exercise reasonable control" over the presentation of the case, as required by

KRE 611, The judge exercised his discretion in determi_ning
                                               .     .
                                                            the probativeriess

of the Commonwealth's evidence) determined this probativeness outweighed

any prejudice, and found that the method of its presentation was appropriate.

Thus, the trial court did not abuse its discretion.

2.    Drug Dealing ·

      Most of the aforementioned cell phone evidence related to Taylor's drug

dealing. Thus, Taylor also argues that the admissionc.of this evidence violated

                                        13
 KRE 404(b). KRE 404(b) states that "[e]vidence of other crimes, wrongs, or acts

 is not admissible to prove the character of a person in order to show action in

 conformity therewith .... " However, if provided for a permissible non-character

 purp~se,   the evidence may b.e admissible. See Dickerson, 486 S.W.3d at 320

 (citing Bell, 875 S.W.2d.at 889). Additionally, the probativeness of such -non-

 character evidence of other crimes, wrongs, or acts must        "exc~ed"   its

 prejuditia.I value. Dickerson, 486 S.W.3d at 320 (citing Bell, 875 S.W.2d at

 889). We note that Taylor's counsel spoke of his drug dealing during opening

 statements and Taylor openly discussed his business and use of drugs while

 testifying on direct examination. Therefore, he also presented this evidence as

 part of his strategy at trial. Whatever strategy may have been utilized, it is

 disingenuous for Taylor to now complain that he was prejudiced by evidence of

· his drug dealing when he also used it at length in the presentation of his case.

 However, in spite of this flaw, we still hold that the.trial court's admission of

 this evidence was not an abuse of discretion.

       Initially, this Court must find that the drug dealing is evidence of "other

 crimes, wrongs, or acts" under KRE 404(b). However, we find our prior

 decision in White v. Commonwealth, 178       s. W.3d 470 (Ky.   2005) most

 instructive in comparison. In White, the defendant plotted with       two others to
 murder the sheriff. Id. at 473-75. Part of his motive was to install a new

sheriff who wouid allow White's drug business. to flourish. S~e id. As such, the

· Commonweal0- introduced "extensive testimony" about White's drug dealing.



                                         14
Id. at   475~   This Court held that the evidence was admissible under the motive

exception of KRE 404(b). Id. at 476.

         In response to White's argument· that the presentation of evidence was

too extensive and· cumulative for its offered purpose, the Court stated that

White "was not on trial for a lesser crime ... he had been indicted for a capital

offense." Id.   a~   477 (emphasis original). As such, "it was necessary that the

prosecutor prove that [White]'s motive was correspondingly serious." Id: "Such

cumulative evidence was necessary to establisJ:i that [White] was far more than

a casual seller, thus lending credence to the idea that he would seek to kill ih

order to maintain his business." Id. at 478. This Court also felt that even

though the evidence was "voluminm.~s," "it was not the sort of outrageous cnme

... that would almost inevitably inflame a jury's passion." Id. Testimony
                                 \
showed that White sold cocaine, methamphetamine, and. other prescription

drugs. See id. at 477.

         Taylor's drug business was the main motive behind Johnson's murder,

evidence of which was far less prejudicial than the evidence regarding White's

business. White sold numerous drugs, possession of most of which would be a

felony. Taylor was selling marijuana, a drug now legal.in some states.

Additionally, as in White, use of this evidence proved ·motive to kill. This

requires an extensive showing as to what would prompt Taylor to violently

attack and kill a man he called a friend. As such, the extensive evidence

showing Taylor's business and reliance upon that business. Finding· it's

prejudicial nature low, and its probativeness high, this evidence was properly

                                            15
         admitted under KRE 404(b). We fihd no abuse of discretion in the admission of

         cell phone data, text messages, and testimony concerning Taylor's c;Irug

         business, under either KRE 403 or 404(b) .. ·

         3.    Testimony about and video of Taylor at Trust Lounge

               As this issue was not fully preserved, Taylor requests a palpable error

         .review under Kentucky Rule of Criminal Procedure (RCr) 10.26. Under this

         standard, "[w]e will   reverse.~.   only when a 'manifest injustice has resulted from
                                                                                             I
         the error."' Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013). "[T]he

         required showing is probability of a different result or error so fundamental as

         to threaten a defendant's entitlement to due process of law." Id. (quoting

         Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). The "focus is on what

         happened and whether the defect is so manifest, fundamental and

         unambiguous that.it threatens the integrity of the judicial process." Baumia,
.   ,.
         402 S.W.3d at 542 (quoting Martin, 207 S.W.3d at 3)) ..

               The Commonwealth presented video surveillance of Taylor at_ Trust

         Lounge after the murder occurred, showing him dancing, drinking,· and

         interacting with friends while Ballard stands nearby. The Commonwealth used

         the video on three separate occasions: during testimony from Trust Lounge's

         general manager; during cross-examination of Taylor; and in closing. The ·

         entirety of Taylor's d_efense was that Ballard committed the murder and he was

         merely an innocent bystander who only took part i_n the cover-up. This defense·

         made the video from Trust relevant because it showed Taylor's conduct after

         this alleged trauma and the dynamic between Taylor and Ballard. Although

                                                     16
this Court would agree _with Taylor that "partying" behavior is not evidence of

guilt, it is evidence that tends to refute Taylor's claim that he was merely

Ballard's victim, and had undergone a severe trauma when he saw his friend

violently attacked and killed. Since the evidence has some tendency to prove·

Taylor's guilt, it is relevant under KRE 40 I.                                     (   .


      Furthermore, the evidence was     pro~ative   because it tended to refute·

Taylor's alternative perpetrator theory. Therefore, this Court cannot say that

there was any undue prejudice from this evidence; nor can we say that any

undue prejudice outweighed the relatively high probative value of the evidence.

The trial judge did not abuse his discretion, and we do not find palpable error

in the admission of this evidence.

      Finally, Taylor argues that the Commol?-wealth submitted this evidence

solely to prove his bad character in_violation of KRE 404(b). However, the ·

evidence presented of Taylor's behaviOr at Trust after the murder falls out~ide

the purview of KRE 404(b). Dancing, drinking, and socializing at a nightclub is

not inherently criminal nor inherently indicative of bad character. Thus, it

cannot be considered evidence of "other crimes, wrongs, or aets." Any undue

prejudice certainly did not outweigh the probative value.

4.    Guns, Books, and Designer Clothing

      Taylor next contends that admission of photographs showing several

items in his possession at the time of his arrest was an abuse of discretion.

The relevant items are: two books - The Prince by Machiavelli; The Smuggler's

Ghost, when marijuana turned a_Florida Teen into a millionaire fugitive, a true

                                        17
·story; designer clothing, and handguns. These items were found in Taylor's

. possession when he was arrested two miles from the Mexico border. Taylor

does not dispute that he was fleeing to Mexico.. The Commonwealth argued

that this flight showed Taylor's guilt.

       Evidence of "flight is _always some evidence of a sense of guilt." Rodriguez

v. Commonwealth, 107 S.W.3d 215, 218-19 (Ky. 2003) (quoting Hord v._

Commonwealth, 13 S.W.2d 244, 246 (Ky. 1928) (other citations omitted)) •. The

·collection of items with Taylor show-ed his in_tent to create a riew life of crime in

Mexico as an attempt to flee any consequences from his crime. As such, it
            .                             .
shows evidence of guilt and is relevant.

       However, Taylor has failed to show the inherent prejudicial nature of

these items. Taylor argues the admission was "pure character assassination"

but it is beyond this Court how possession of designer clothing, books, and

even handguns can be so unduly prejudicial. As such, we cannot say that the ·

prejudice outweighs the probative value.

      Taylor also implies the admission of this evidence contravenes KRE

404(b). This Court is also unwilling to characterize the possession of these

items as "[e]viderice ·of other crimes, wrongs, or acts" under KRE 404(b)

(emphasis added), as Taylor urges. Possession of~ book, designer clothing,

and a gun is not inherently criminal. We are not persuaded to extend KRE

404(b)'s reach to these items.




                                              18
5.    The 55 Gallon Barrel
        .    .
      Taylor concedes that this issue is also unpreserved and subject to

palpable error review. At trial, the Commonwealth introduced th<? actual barrel

which had been used to hide and dispose of Johnson's body after his murder.

Taylor argues that admission of this evidence was unnecessary as

photographs, videos, and testimony provided a description of the barrel and

explanation of its use. However, the test for admission is not whether the

evidence was necessary but whether it was relevant.

      The barrel is relevant to the Commonwealth's case, especially since

Taylor was also being ·prosecuted for Tampering with Physical Evidence. The

barrel is probative of.Taylor an4 Ballard's attempt to conceal the body and hide

the evidence of their crime. It is akin to a murder weapon which is relevant to

the case, even if there are photographs and testimonial descriptions of it.

"[T]he prosecution is permitted to prove its case by competent evidence of its

own.choosing, and ... the defendant may not ,stipulate away parts of the case

that he does not want the jury to see." Page, 149 S:W.3d at 420. The barrel is

probative of Taylor's planning of the crime and the concealment of any

evidence. A_s such, we cannot see that any undue prejudice would outweigh

this probativeness. This is not like our -precedents involving grotesque

photographs or autopsy videos and details.   ~his   was a barrel that had

previously been used to dispose of a bqdy. Taylor argues that there may have

been a stench from the ·barrel or the _barrel may have been in front of the jury

for an extended period of time. There is no evidence that the barrel was

                                       19
.grotesque or altered in any way to enhance its prejudicial nature. Taylor's

arguments are pure speculation .. We cannot hold that the trialjudge abused

his discretion in allowing the Commonwealth to present this evidence.

C.    The text messages       a~d   video evidence were properly authenticated.

     ·Taylor alleges that the text messages from Taylor's and Ballard's cell

phones and surveillance videos from three separate locations were not properly

authenticated~ We begin our analysis by noting th.at questions of          ·

authentication are reviewed under an abuse of discretion standard. · Johnson v.

Commonwealth,    1~4     S.W.3d 563, 566 (Ky. 2004) (internal citations omitted).

      KRE 901 (a) requires "authentication or identification as a condition
                     .              .                                          .
precedent to admissibility" which "is satisfied by evidence sufficient to support

a finding that the matter iri question is what its proponent claims." This

burden."is slight, which requires on~y a prima facie·showing of authenticity to ·

the trial court." Johnson, 134 S.W._3d at 566 (citing United-States   v~   Reilly, 33.

F.3d 1396, 1404 (3d Cir. 1994)).

l.    Cell Phone   Message~


      Det. Sisson testified that he had.training in computer forensics, and

specific training in cell phone technology. He testified he obtained the contents

of Taylor's cell phone through the use of a program called Cellbrite. Det.

Sisson testified· that Cellbrite pulls information from a cell phone in a readable

format for investigators. He testified that the report was a fair and accurate

depiction of the download created. This is sufficient for authentication

purposes to prove that the item in question is what it is purported to be: a

                                          20
generated report, showing the contents of Taylor's ceff phone. It is important to

note that the report itself was introduced without objection.

      Taylor argues briefly that these messages included hearsay. He is

·correct. However, this issue is.not properly preserved. Although defense

counsel objected to these messages as hearsay during trial, the judge failed to

make a specific ruling on the hearsay objection. He overruled the objection,
                                    '                     '



finding that th~ evidence w~s relevant and a proper foundation had been laid,

but he failed to make a ruling on hearsay. Defense counsel did not raise the

hearsay issue again. "[I]f an objection is made, the party making the objectfon

·must insist that the trial court rule on the objection, or else it is waived." Bell

v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971) (citing Simmons v.

Commonwealth, 269 S.W. 732 (Ky. 1925) and Harris v. Commonwealth, 342

S.W.2d 535 (Ky. 1961)). This issue was, therefore, waived, as defense counsel

failed to request a ruling on the hearsay objection.

      Even if the issue had· been properly preserved, the error in admitting this
                '         '    .
J;iearsay was harmless. "A non-constitutional evidentiary error may be deemed

harmless, the United States Supreme Court has explained, if the reviewirig

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) (citing Kotteakos   v~       United States, 328 U.S. 750 (1946)). The cell

phone record did contain hearsay evidence of Taylor's drug dealing. However,

Taylor's defense raised this fact during opening statement and Taylor testified

at length about his drug dealing. !he evidence against Taylor was plentiful:            an
                                                21
 eye witness account the jury deemed credible artd corroborating vid<?o

 surveillance. Thus,.we deem any error in admitting .the cell phone records to

 be harmless.

        We also hold that the surveillance videos were sufficiently authenticated

 to meet the Commonwealth's burden. The Commonwealth introduced three

 separate videos: surveillance video from Spare Parts; video from 148 Jefferson

· Street, showing a view of Taylor's garage; and surveillance from Trust Lounge

 after Johnson's murder.

       Spare Parts. Sergeant David Richardson testified that he personally

 downloaded the Spare Parts surveillance video from the business's system and

· reviewed said video. An employee of the business confirmed that he assisted in

 the retrieval of this footage.

       148 Jefferson Street. Sgt. Richardson also testified that he personally

 downloaded the video from 148 Jefferson Street, which showed·Taylor's garage.

The owner of the property testified as to the surveillance system, cameras, and
                                          /


 Sgt. Richardson's approved retrieval of the footage. ,

       Trust Lounge. Eric Ostrander, general manager of Trust Lounge,

testified as to the existence of his surveillance system, where the cameras were

located,. and that the admitted video was a fair and accurate depiction of the

nightclub.

       This testimony is· sufficient to establish the Commonwealth's prii.na facie

showing that the. evidence is what it is purported to be. The defense did not



                                         22
    question the actual authenticity of this video. Without more, we cannot say

    that the judge's decision was an abuse of discretion. ·

,   D~    The trial court's exclusion of Ballard's KCPC evaluation was
          harmless error.

              Taylor attempted to call Dr. James Anderson from K~ntucky Correctional

    . Psychiatric Center (KCPC) to. testify about Ballard's KCPC evaluation and his

    exi:)erience with Ballard. Most of the relevant evidence involved Dr. Anderson's

    ·psychiatric diagnoses: malingering and feigning symptoms of post-traumatic

    stress disorder. The co·mmonwealth objected, and the trial judge sustained the

    objection, finding that th,e evidence was irrelevant as the mental health records

    did not go to Ballard's memory or ability to recall, and Ballard already admitted

    that he was a.liar. 4 We hold that this evidence should have been admitted, but

    the error was harmless.

         · "The Due Process
                       .    Clause of the Fourteenth Amendment guarantees
                                                                  .       a

    criminal defendarit tJ:ie opportunity to present a full defense, and that
                                     .     .
    guarantee includes the right to introduce evidence that an alternate perpetrator

    committed the offense." Gray v. Comm~nwealth, 480 S.W.3~l 253, 266 (Ky. ·

. 2016) (citing Harris v: Commonwealth, 134 S.W.3d 603, 608 (Ky. 2004)). Taylor

    chose to. employ the aaltperp theory that Ballard had killed Johnson and

    wanted to elicit Dr. Anderson's testimony to prove that Ballard was feigning his


          The Commonwealth argues that the defendant also Jailed to overcome the
          4

  psychotherapist-patient privilege in KRE 507(b). The foundation for this argument is
· unclear in the record but we· note that, if Ballard waived his ·privilege for the purpose
  of a KCPC evaluation, this privilege would no longer apply. The Commonwealth
  cannot deny the privilege in assessing competency and criminal responsibility and
  then claiin the privilege on behalf of witnesses it wants to portray as credible.
                                               23
 trauma after the murder, in order to show that Ballard was the perpetrator
                                .              .
 rather than Taylor.

       For aaltperp evidence to be admitted, "all KRE 403 requires is evidence of

 some logical, qualifying information to enhance the proffered evidence beyond

 speculative, farfetched theories that may potentially confuse the issues or

 mislead the jury." Id. The Commonwealth did not object to Taylor's other

 aaltperp evidence, including several jailhouse. informants who testified that

 Ballard had confessed to Johnson's murder. Both Taylor and the

 Commonwealth agree that only two people were present at the tj.me of .

 Johnson's death: Taylor and Ballard. As only those two men knew what really

 happened that night and each rnari testified. that the other had killed Johnso:r:i; .

.Taylor's theory was "more than speculation or exculpatory name-dropping." Id.

      ·Under the broad nature of KRE 401 and 403, as we outlined in

 determining the admissibility of the.Commonwealth's evidence, Taylor clearly

met his burden for admission of this evidence. But, the judge excluded this

·evidence based on its inability to question Ballard's memory or ability to recall.

Dr. Anderson's testimony
                     .
                         did tend to undermine Ballard's· credibility
                                                              .
                                                                      generally.

But it also went directly to Ballard's guilt, state of mind, and feigning of

trauma, thereby lending credence to Taylor's aaltperp theory that B~lard killed

Johnson. The gist of Taylor's aaltperp theory was that if Ballard was feigning
                                                          .
trauma after .the experience, he was not truly traumatized and was lying to

conceal his participation in the crime. Therefore, here, the evidence's value

went to Taylor's aaltperp theory and the decision to exclude was "unsupported

                                         24
 by sound legal principles." See Webb, 387 S.W.3d at 324 (internal citations

 omitted).

          However, we also hold that this error was harmless. "Exclusion of

 evidence that an 'aaltperp' had both the motive and the opportunity to commit

 the act for which the accused is charged deprives the accused of the Due

 Process right to present a defense." Blair v. Commonwealth, 144 S.W.3d 801,

 810 (Ky. 2004) (citing Beaty v. Commonwealth, 125 S.W.3d 196, 07-08 (Ky.

 2003).    ~Harmless   error analysis applied to a constitutional error ... involves

 considering the improper evidence in the context of the entire trial and asking

. whether there is a [1reasonable possibility that the evidence complained of

 might have contributed to the conviction. [1" Staples v. Commonwealth, 454

 S.W.3d 803, 826-27 (Ky. 2014) (citing Talbott v. Commonwealth, 968 S.W.2d

 76, 84 (Ky. 1998) (quoting Chapman v. California, 386.U.S. 18, 23 (1967)). "A

 properly preserved constitutional error is reversible, in other words, unless it

 was 'harmless beyond      a reasonable doubt. m Staples, 454 S. W.3d at 827
 (quoting Chapman, 386 U.S. at 23).

       In this case, the excluded evidence was minimal. Taylor presented vast.

 evidence of his aaltperp theory: several jailhouse informants who testified of

 Ballard's inculpatory statements arid confessions; Taylor's own testimony of

 what he stated transpired that evening; and cross-examination of Ballard,

 confessing to his violent history and talent for lying. In light of the. weight of

 this evidence, Dr. Anderson's testimony added little, if any, value to Taylor's

. aaltperp theory. As such, there is no reasonable possibility that the admissioh

                                           25
of this evidence would have led to a different verdict, and the error was

harmless.

E.    The trial court did not abuse its disc·retion in refusing to choose a
      particular juror as an alternate .

      . Defense counsel received.juror qualification forms three days before trial

and had the oppo:r:tunity to fully examine potential jurors during voir dire.

After several days of trial, defense counsel told the Court they had discovered

that juror 3251 was married to the public relations officer for the Lexington

Fayette Urban County Government, information that the juror disclosed on his

jury sheet. Taylor now argues that this juror should have been chosen as the

alternate and dismissed, although he has made no specific allegations that this

juror lied or deliberately withheld information duririg voir dire.

      "The rule is well settled that a challenge to a juror for cause must be

made before the trial." Pelfrey v. Commonwealth, 842 S.W.2d 524, 526 (Ky.

1992) (citing Galliaer v. Southern Harlan Coal Co., ·57 S.W.2d 645 (Ky. 1933)).·

"All .challenges must be made before the juror is sworn. No prospective juror

may be challenged after being accepted unless the court for good cause permits

it." RCr 9.36   (emphasi~   added). "[T]he granting of such challenge is

permissive. What constitutes 'good cause' and whether the court will permit

such challenge are matters within the discretion of the trial court." Rowe v.

Commonwealth, 394 S.W.2d 751, 753 (Ky. 1965) (quoting Waggoner v.

Commonwealth, 72 S.W.2d 723 (Ky. 1934)).




                                          26
      ·We have upheld a trial court's discretion in deliberately choosing an

 alternate juror
              .
                 when circumstances arise that may impugn the integrity of the     ~




juror in question. See Nunley v. Commonwealth, 393 S.W.3d 9, 14 (Ky. 2_013).

Although we also acknowledged that "[t]he trial court should err on the side of

caution by striking the doubtful juror," see Nun.ley, 393 S.W.3d at 14, we

similarly must analyze. a judge's. decision not to deliberately choose an alternate

under the same abuse of discre.tion standard. Both parties had the juror's

infor'1Ilation before voir dire; there is no allegation the juror perjured himself or

intentionally misled the jury during voir dire; and Taylor has
                                                            . ·not alleged
                                                                        .
                                                                           any

specific bias. While we continue to appreciate judges' erring on the side of

caution and dismissing jurors for cause when there are questions about a

juror's ability to serve, we cannot say th_e judge's decision not to dismiss for

cause was an abuse of discretion. The jury had been impaneled; several days -

.of trial had ensued; Taylor did not object to this juror during voir dire; and

Taylor has failed to articulate any spec.ific prejudice that would have resulted in

the juror's dismissal for cause. It is up to the court to determine whether good

cause has been shown to allow a for-cause challenge after the jury was

impaneled. The judge here decided there was not, and deem.ed it unnecessary

to designate the juror.as the alternate. We cannot say this was an abuse of

discretion.




                                         27
                                 III.   CONCLUSION .

      Any errors that occurred at trial were harmless. The evidence against

Taylor was ample .. We see no reversible error her~. For the foregoing reasons,

we affirm the Fayette Circuit Court.

      All sitting. Minton, C~J.; Hughes, Keller, VanMeter, Venters and Wright,

JJ., concur. Cunningham, J., concurs in result only.




COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General   of Kentucky
Emily Lucas
Assistant Attorney General




                                        28
