         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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                                                    RENDERED: JUNE 16, 2016
                                                       NOT TO BE PUBLISHED

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                              2015-SC-000197-MR


RICARDO D. TAYLOR                                                    APPELLANT


                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.                   HONORABLE MITCH PERRY, JUDGE
                            NO. 12-CR-002381


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                    MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING


      In August 2012, Appellant, Ricardo D. Taylor, had been dating Tina

Norman for nearly one month. The two had also been living together at Tina's

apartment. Around noon on August 2, 2012, while at Tina's apartment, Taylor

began questioning her about cheating on him with another man. Tina, who

was high at the time, laughed in response and Taylor became very angry. He

threw a can of soda at her and then physically assaulted her. Tina broke up

with Taylor and also told him to move out and to leave the key to her

apartment with a neighbor. She gathered her two children and took them to

another location.

      Tina testified that when she returned to the apartment later that

afternoon, Taylor was still there. He gave her the apartment key, and left.
Taylor returned to the apartment complex at around 11 p.m. that evening.

Tina testified that she witnessed Taylor arrive while she was walking to a

friend's apartment that was located in the same complex. Two of Tina's

friends, Cheryl Bagwell and Tela Harvey, were in Tina's apartment at that time.

While leaving her other friend's apartment, Tina observed Taylor robbing a

child at gunpoint. She then called the police from her friend's house.

      While Ms. Bagwell was stepping out of Tina's apartment to smoke, she

was confronted by Taylor who told her to go into the apartment. He pulled out

a gun and demanded that she tell him where Tina was. He also attempted to

telephone Tina and demanded that Ms. Bagwell do the same. Taylor

threatened to kill Ms. Bagwell and Ms. Harvey if they did not find Tina. At

some point, he fired his gun into the floor of the apartment.

      While holding the two women at gunpoint inside the apartment, Taylor

opened the apartment door and lured a boy named Osman Omar into the

apartment. The victims were seated on a couch for about 25 minutes while

being held at gunpoint. Upon hearing the police arrive at the scene, Taylor

became upset and demanded to know who called them. Taylor then shot

Osman twice, Ms. Bagwell once, and Ms. Harvey twice. Ms. Bagwell survived,

but Osman and Ms. Harvey were killed.

      The Louisville Metro SWAT team was called to the scene. The officers

shot "CS" gas into the apartment, breached the door, and detained Taylor.

Taylor was then arrested and subsequently indicted. Prior to trial, the court




                                        2
determined that Taylor was intellectually disabled and, therefore, ineligible for

the death penalty.

      A Jefferson Circuit Court jury convicted Taylor on two counts of murder

and two counts of capital kidnapping. For each, they sentenced Taylor to life

imprisonment without the possibility of parole for a period of 25 years. The

jury recommended that the two murder sentences be served consecutively but

concurrently with the kidnapping convictions. The jury also convicted Taylor of

one count of first-degree unlawful imprisonment, one count of tampering with

physical evidence, and one count of first-degree possession of a controlled

substance while in possession of a firearm.

      After the jury sentenced Taylor on the murder and kidnapping

convictions, Taylor pled guilty to being a first-degree persistent felony offender

("PFO"). The Commonwealth agreed to recommend the minimum sentence on

the remaining convictions, which was ten years' imprisonment for each,

including the first-degree PFO enhancements. The Commonwealth further

recommended that all sentences run concurrently with the two murder

sentences of life imprisonment without the possibility of parole for a period of

25 years. The trial court accepted this recommendation. Taylor now appeals

his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the

Kentucky Constitution. Three issues are raised and addressed as follows.

                             Kidnapping Exemption

      For his first argument, Taylor asserts that the trial court failed to

instruct the jury on the kidnapping exemption statute. KRS 509.050. This


                                         3
issue was properly preserved by defense counsel's oral motion and tendered

instruction. The kidnapping exemption enumerated in KRS 509.050 provides:

      A person may not be convicted of unlawful imprisonment in the
      first degree, unlawful imprisonment in the second degree, or
      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 criminal purpose.

      Taylor argues that application of the kidnapping exemption is a jury

issue, not an issue of law for the court. In support, Taylor cites case law

discussing other defenses, Amendments 6 and 14 of the U.S. Constitution, and

Sections 7 and 11 of the Kentucky Constitution. In Calloway v.

Commonwealth, however, we held that the application of the kidnapping

exemption is to be determined by the trial court and not by the jury. 550

S.W.2d 501, 503 (Ky. 1977). Taylor also contends that the kidnapping

exemption is an affirmative defense, not an exculpation defense. The primary

distinction is that the former requires the Commonwealth to bear the burden of

proof to negate the offense, while the latter places the burden on the defendant.

LaPradd v. Commonwealth, 334 S.W.3d 88, 90 (Ky. 2011) (citation omitted).

      However, it appears that Taylor failed to raise these arguments before the

trial court. Therefore, we need not address Taylor's new claims on appeal—

that the exemption is an affirmative defense and that the application of the

kidnapping exemption must be determined by the jury, not the trial court.

Even if we were inclined to reconsider Calloway, this is not the case to do it

                                        4
because the facts are simply not there. And although Taylor has failed to

challenge the trial court's determination as a matter of law that the kidnapping

exemption did not apply, we find no error here.

                                 Expert Evidence

      Taylor argues that the trial court abused its discretion in ruling on the

admissibility of evidence elicited during the testimony of defense expert, Dr.

John Fabian. Dr. Fabian testified that Taylor suffered from Post-Traumatic

Stress Disorder ("PTSD"), Attention Deficit Hyperactivity Disorder ("ADHD"),

and that he was intellectually disabled. Taylor's argument here is twofold.

      First, he argues that the court erred in permitting the Commonwealth to

elicit during cross-examination that, in reaching his diagnosis, Dr. Fabian

considered a 2006 incident in which Taylor was shot and severely wounded by

police officers after Taylor shot at them first. Taylor specifically argues that

this is inadmissible evidence of prior crimes or bad acts. Evidence of prior

crimes or bad acts must be relevant "for some purpose other than to prove the

criminal disposition of the accused . . . ." Meece v. Commonwealth, 348 S.W.3d

627, 662 (Ky. 2011). Evidence admissible under KRE 404(b) must also be

relevant, probative, and not unduly prejudicial. Bell v. Commonwealth, 875

S.W.2d 882, 889 (Ky. 1994). See also KRE 401; 402; and 403.

      We agree with the Commonwealth that this evidence was admitted for

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

Most notably, under KRE 703, the Commonwealth is permitted to fully explore,

on cross examination of the expert, his diagnosis of PTSD. That includes

                                         5
whether the 2006 incident may have exacerbated Taylor's PTSD.       See Foster v.

Commonwealth, 827 S.W.2d 670, 678-79 (Ky.1991) (quoting 31

Am.Jur.2d Expert and Opinion Evidence § 92) ("[t]he data on which expert

witnesses rest their specific opinions, as distinguished from the knowledge

which qualifies them to offer opinions at all, may be fully inquired into on

cross-examination." See also Sluss v. Commonwealth, 450 S.W.3d 279, 289

(Ky. 2014) (affirming the trial court's decision to permit the Commonwealth to

discuss defendant's medical records at trial where the records were introduced

as a part of defense strategy.).

      Taylor concedes that this evidence was relevant and probative. Rather,

he submits that the crux of the trial court's error here was whether the

probative value of the 2006 incident was substantially outweighed by the

prejudice that occurred from its introduction.

      The record indicates that the court limited the prejudicial impact that Dr.

Fabian's testimony may have had on the jury. For example, the court limited

the Commonwealth to inquiring into whether Dr. Fabian considered the 2006

incident in his evaluation. Prior to the testimony, Taylor's counsel informed

the court that he had discussed the court's ruling on this issue with Taylor,

and that Taylor insisted that his counsel question Dr. Fabian regarding the

2006 shooting. The court also prevented the Commonwealth from eliciting any

evidence that Taylor was criminally charged as a result of the 2006 incident.

At the conclusion of Dr. Fabian's testimony, the court admonished the jury to

consider that testimony only for the purpose of evaluating the validity and

                                        6
probative value of his opinion, and for no other purpose. Therefore, the alleged

prejudice here does not outweigh the probative value of Dr. Fabian's contested

testimony. As such, the trial court did not abuse its discretion in permitting

the introduction of this evidence.

       Second, Taylor also argues that the trial court abused its discretion in

precluding Dr. Fabian from testifying at length concerning Taylor's intelligence

quotient ("IQ"). During direct,examination of Dr. Fabian, defense counsel

elicited that Taylor was intellectually disabled based on an IQ examination. On

cross-examination, the Commonwealth elicited testimony that Taylor scored a

91 on an IQ examination that was administered in 2014. That score is within

the average range. Defense counsel then attempted to elicit additional

testimony concerning other tests that placed Taylor's IQ below 91. The court

precluded either party from presenting additional evidence of Taylor's IQ. The

court reasoned that while such evidence was relevant for the sentencing phase

of trial, it was not relevant for the guilt phase.

      Taylor's primary contention here is that additional IQ evidence was

relevant to his extreme emotional disturbance ("EED") defense. More precisely,

a person is not guilty of intentional murder if:

      he acted under the influence of extreme emotional disturbance for
      which there was a reasonable explanation or excuse, the
      reasonableness of which is to be determined from the viewpoint of
      a person in the defendant's situation under the circumstances as
      the defendant believed them to be. KRS 507.020(1)(a).

Taylor therefore argues that his IQ is relevant to the "circumstances" through

which he views the world. While Taylor's IQ may have had some relevance


                                           7
here, it is worth reiterating that Dr. Fabian testified at length concerning all of

Taylor's psychological and cognitive deficiencies, including Taylor's PTSD,

ADHD, and his intellectual disability. The trial court's limitation on the

introduction of additional evidence demonstrating the range of Taylor's IQ

scores is well-founded. A defendant's IQ scores are typically relevant, if at all,

either before trial or at the sentencing stage of trial. Although sometimes

relevant during the guilt stage, excessive testimony concerning numerous IQ

assessments and corresponding scores is unnecessary, cumulative, and may

confuse the jury when determining the issue before it, i.e., guilt. Therefore, we

cannot say that the trial court abused its discretion here by precluding the

introduction of additional IQ evidence.

                               Handgun Evidence

      Finally, Taylor argues that the trial court erred in permitting the

Commonwealth to present evidence of a handgun and ammunition that was

discovered in Taylor's car. The Commonwealth elicited testimony from a

Louisville Metro Police Detective that a .45 caliber hand gun and significant

quantity of ammunition were discovered in Taylor's vehicle, which was located

at the apartment complex. Taylor claims that this evidence was irrelevant to

the crimes for which Taylor was convicted.

      Evidence is relevant if it has "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." KRE 401. This test

requires "only a slight increase in probability . . . ." Harris v. Commonwealth,

                                          8
134 S.W.3d 603, 607 (Ky. 2004). Evidence that is not relevant is not

admissible. KRE 402. As previously discussed, a trial court's determination

with respect to relevancy of evidence is reviewed under an abuse of discretion

standard. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001).

      In Harris v. Commonwealth, we made clear that "weapons which are not

used in the commission of the crime are not admissible." 384 S.W.3d 117, 124

(Ky. 2012). It is undisputed that the .45 caliber handgun and ammunition

discovered in Taylor's car were not used during the commission of the crimes

for which he was convicted. In Harris, however, one of the inadmissible guns

was recovered at Harris' home, four days after the murder for which Harris was

charged and convicted. Id. at 121. The other inadmissible weapon was located

in the Cincinnati Police Department property room.     Id. at 122. Here, Taylor's

weapons were discovered in his car at the crime scene. The Commonwealth

argues that this evidence is relevant to the issue of intent and EED.

      In contrast, Taylor argues that a person acting under EED has acted

intentionally and, thus, the handgun and ammunition discovered in Taylor's

car is irrelevant to this issue of intent or EED. Rather, Taylor cites that a

proper EED analysis requires a "specific and identifiable triggering event" that

is "sudden and uninterrupted." Holland v. Commonwealth, 466 S.W.3d 493,

504 (Ky. 2015) (citations omitted). Contrary to Taylor's assertion, the

Commonwealth must nevertheless prove intent in order to convict Taylor of the

two murder charges for which he was indicted and tried. Therefore, the fact

that Taylor arrived at the crime scene with multiple weapons and additional

                                         9
ammunition is at least somewhat relevant to his state of mind and preparation

leading up to the crimes in order to prove murder. Whether EED negates this

intent is a separate issue.

      In any event, we ultimately held in Harris that, while the trial court

abused its discretion, the judgment was not substantially swayed by the

admission of the contested evidence and was, therefore, harmless.     Harris, 384

S.W.3d at 125. RCr 9.24. Similarly, any error that occurred in the present

case is harmless and does not require reversal. For example, the

Commonwealth did not reference that weapon or ammunition any further

during their case in chief or in closing argument. Also, the Commonwealth

presented significant evidence in support of its case, including victim

testimony.

                                   Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Jefferson

Circuit Court.

      All sitting. All concur.




                                       10
COUNSEL FOR APPELLANT:

Daniel T. Goyette
Joshua Michael Reho
Office of the Louisville Metro Public Defender


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Taylor Allen Payne
Assistant Attorney General




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