                                                    RENDERED: DECEMBER 14, 2017
                                                               TO BE PUBLISHED




                                      2016-SC-000070-MR



    JOHN GRAY                                                                APPELLANT


                         ON APPEAL FROM SCOTT CIRCUIT COURT
    v.                  HONORABLE ROBERT G. JOHNSON, JUDGE
                                   NO. 14-CR-00217


    COMMONWEALTH OF KENTUCKY                                                   APPELLEE



                     OPINION OF THE COURT BY JUSTICE VENTERS

                                         AFFiRMING

          Appellant, John Wesley Gray, appeals from a judgment of the Scott

    Circuit Court convicting him of three counts of violating a protective order, 1

    kidnapping, two counts of first-degree unlawful     imprisonment~    first-degree
                                  .        .
    burglary, and being a first-degree persistent felony offender (PFO). With the

    PFO enhancement, the jury recommended a total sentenc_e of 50 years in

    prison. The trial court entered judgment accordingly. On appeal, Appellant

    claims that the trial court erred by 1) admitting improper character evidence

    arid 2) failing to grant a directed verdict on the two counts of first-degree

    unlawful imprisonment. For the reasons stated below, we affirm the judgment.



          1   Violating a protective order is a Class A misdemeanor under KRS 403.763.




I
                 I. FACTUAL AND PROCEDURAL BACKGROUND
      Appellant's three-year romantic relationship with Angel Hardy came to

an abrupt end when Hardy discovered text messages on his phone that he was

involved with another woman. When Hardy confronted Appellant about his

infidelity, he threatened to shoot her in the face. Hardy ordered Appellant to

vacate the residence he shared with her and her   children~   She also obtained

an emergency protective order (EPO) against him.

      One week after entry of the EPO, Appellant returned to the residence

when no one was home. When Hardy's seventeen-year-old son,        A.H.~   arrived.

with Hardy's granddaughter, T.T., Appellant confronted him with a gun in hand

and hit him in the face. He then used zip ties to bind the wrists of A.H. and

T.T., put duct tape over their mouths,. and put them in bedroom closets. When

Hardy arrived, Appellant hit her with a pistol and bound her wrists with zip

ties. Hardy successfully calmed Appellant by telling him they could resume

their relationship. At that point, Appellant untied Hardy and released A.H. and

T.T., however, he threatened further harm if Hardy reported the incident to

police. Rather than call the police immediately, Hardy decided to report the

incident when they appeared in court for the upcoming hearing to convert the

EPO to a domestic violence order. After Appellant left the residence, Hardy

asked her neighbors to call the police, if they saw him at the house again.

      The next day, Appellant returned to the residence, and on the following

day, neighbors called the police. They arrived and arrested Appellant for the

apparent violation of the EPO. Hardy then reported the home invasion and


                                       2
related offenses that occurred earlier. Appellant was-indicted. on four counts of

violating an EPO, three counts of kidnapping, fin~t-degree burglary, and being a

first-degree persistent felony offender (PF0).2 A jury found him guilty of three

counts of violating a protective order, kidnapping, two counts of first-degree

unlawful imprisonment, first-degree burglary, and being a first-degree PFO.


                                  II. ANALYSIS

A. Evidence of Appellant's "other crimes, wrongs, or acts."
                                               .                        .
l. The evidence of Appellant's prior threat against Hardy was not
   improper.
       Appellant's first assignment of error is the trial court's decision allowing

the jury to heat evidence of the th;reat that precipitated the issuance of tlie

EPO, Appellant's threat to shoot Hardy in the face. Prior to trial, the

Commonwealth filed notice under KRE 404(c) of its intent to introduce evidence

of the threat.3 Appellant objected and thus preserved the issue for appellate

review. The admission of "other acts" evidence under KRE 404(b) is reviewed

on appeal for abuse of discretion: whether the trial judge's decision to admit

the evidence was arbitrary, unreasonable, unfair, or unsupported by sound

legal principles. Matthews v. Commonwealth, 163        s~W.3d   11, 19 (Ky. 2005);

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).




       2 Appellant was also indicted for possession of a handgun by a convicted felon,
but this charge was severed from the trial of the charges at issue in this appeal.
       a The notice also disclosed the Commonwealth's intent to produce other "bad
acts" evidence, but those matters were resolved to the satisfaction of the parties.

                                           3
         KRE 404(b) is a rule of ~xclusion barring the admission of evidence of.

~other   crimes, wrongs, or acts ... to prove the character of a person in order to

show action in c::onformity therewith." ,However, KRE   404(~)   provides two

exceptions to the rule. Evidence of "other crimes, wrongs, or acts" may be

admitted if "offered for some other purpose, such as proof of motive,

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

mistake or accident." KRE 404(b)(l). And, such evidence may be admitted if it

is "so inextricably intertwined with other evidence essential to the case that

separation of the two (2) could not be accomplished without serious adverse

effect on the   off~ring   party." KRE 404(b)(2).

      Even when deemed otherwise admissible under the KRE 404(b)

exceptions, the proffered evidence must also pass the balancing test of KRE

403, which authorizes the exclusion ·of any evidence when "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." Consequently, the admissibility of

Appellant's "other wrong, crime or act," i.e., his threat to shoot Hardy in the

face, must be evaluated by weighing its relevance, probative value and

prejudicial effect. Bell v. Commonwealth, 875 S.W.2d 882, 889-890 (Ky! 1994)

(Evidence of prior uncharged offense was properly admitted when it was

relevant to the crime charged, sufficiently probative, and its pro}lative value

outweighed its prejudice resulting from its admission.).



                                            4
       Citing Daniel v. Commonwealth, 905. S.W.2d 76, 78 (Ky. 1995), Appellant

 contends that the Commonwealth never demonstrated. how Appellant's threat

 tended to establish his intent, motive, plan, or any other relevant purpose

 bringing it within the 404(b)(l) exception, or that the threat was inextricably

 intertwined with evidence essential to proving the crimes charged so as to bring

 it within the 404(b)(2) exception. He contends that the prior threat had little or

 no probative value because the jury would be otherwise aware of the issuance

 of the EPO, and the act the precipitated the EPO would simply add undue

 prejudice and arouse the jury's emotions against him.

       The Commonwealth argues that because of the context ir:i which the

 threat was made-Appellant and Hardy fighting over his unfaithfulness-the

 threat was probative and relevant to explain the EPO and its violation. Citing

 Clark v. Commonwealth, 267 S.W.3d 668, 681 (Ky. 2008), the Commonwealth

 further contends that Appellant's threat tended to verify the fact that Hardy

 delayed her reporting the home invasion because she was afraid of Appellant,

 thus making the threat inextricably intertwined with other evidence. ·.

       In Clark, the mother of sexual abuse victims did not immediately

: confront her physically abusive cohabitating boyfriend about sexually abusing

the children because she was afraid he would do her harm. She waited until

the next day to report him. The Clark court held that

      the setting and context of the events surrounding [the mother's]
      discovery of the sexual abuse of her children, and her rea~ons for
      not contemporaneously confronting [her long-term boyfriend,_ the] -
      Appellant about it, were germane to the overall sequence of events
      surrounding the crimes and to the events which led to them being

                                        5
      reported to authorities. As such, this evidence was inextricably
      intertwined with other evidence critical to the case:

267 S.W.3d at 681.

      The trial court conducted a pre-trial hearing on the issue. ·We cannot say

that it abused its discretion upon concluding that Appellant's threat, uttered

just a week before the crimes, served a relevant purpose other than to prove

Appellant's criminal disposition, and that the.potential for prejudice resulting

from the evidence did not substantially outweigh its probative value. Bell, 875

S.W.2d at 889-891; Billings v. Commonwealth, 843 S.W.2d 890 (Ky. 1992). We

are satisfied that the evidence of Appellant's recent threat to shoot Hardy in the

face was relevant to explain her reluctance to report Appellant's later crimes

until after he was arrested. We agree with the trial court that the prejudicial

_impact of the evidence was outweighed by its probative value.

2. The trial court's admonition cured any prejudice caused by testimony
   that Appellant said he h.'1.d "a violent history."
      Hardy testified that Appellant told her that he was angry because he

thought the EPO would prevent him from seeing his children since, in· his

words, he "had a violent history." Appellant objected to that testimony and

moved for a mistrial. The trial court declined to declare a mistrial and instead,

admonished the jury to "disregard the comment made about [Appellant's]

history." Appellant argues that the jury likely inferred from that testimony that

Appellant had an established record of violence, and that he had acted in

conformity with a criminal disposition. He contends that the admonition was




                                       6
 insufficient to erase the prejudice caused by the testimony, as suggested by the

 severity of a 50-year prison sentence.

       The Commonwealth concedes that Hardy should not have repeated the

 portion of. Appellant's statement referring to his "violent history," but asserts

. that a mistrial was not warranted under the facts of this case. A trial court is

 authorized to use its discretion to declare a mistrial only when there    ~s   a

 manifest necessity, when the right to a fair trial has been infringed upon and

 the prejudicial eventcannot otherwise be remedied. Radford v. Lovelace, 212

 S.W.3d 72, 79-80 (Ky. 2006) (overruled on other grounds by Cardine v.

 Commonwealth, 283 S.W.3d 641 (Ky. 2009)). An admonition to the jury

 ordinarily cures an accidental admission of prior bad acts. Boyd v.

 Commonwealth, 439 S.W.3d 126, 132-133 (Ky. 2014) (citation omitted).

Appellant argues that in this case, as evidenced by the 50-year sentence, there

was an "overwhelming probability that the jury [was] unable to follow the

court's admonition and there [was] a strong likelihood that the effect of the

inadmissible evidence [was] devastating" to a fair trial. Johnson v.

 Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).4

      We do not regard Hardy's testimony as a statement in which Appellant

. attributed to himself any specific crimes for wrongful acts. The testimony was

combined with Hardy's explanation of Appellant's unlawful entry into her

home, his restraint of her son and granddaughter, and his assault upon her.


       4 The other exception to the presumptive efficacy of an admonition is when the
question was asked Without a factual basis and was "inflammatory" or "highly
prejudicial." Id. (citations omitted).
                                          7
                                                                                      (




In context, given the evidence presented and Appellant's PFO status, the

aggregate sentence of fifty years does not stand out as symptomatic of a jury

inflamed by the reference to Appellant as a man with a "violent history." It

.does little to persuade us the that the jury failed to heed the admonition.

Matthews v. Commonwealth, 163· S.W.3d 11, 17 (Ky. 2005).

       We acknowledge the truth of Appellant's argument that "unring[ing] the

bell" of unfairly prejudicial testimony is impossible. 5 We simply conclude that
                                                        ,.
the statement underreview di.~ not ring the bell so loudly that its resonance·

muted the curative. effect of the judge's admonition. The trial court's denial of a

mistrial was not an abuse of discretion.

B. We decline to grant palpable error review of Appellant's claim that he
   was entitled to a directed verdict ·on first-degree unlawful
   i,mprisonment.
      The trial court separately instructed the jury on the kidnapping of A.H.

and T.T. With respect to each alleged victim the trial court also instructed on

the lesser induded offenses of first-degree unlawful imprisonment and second-

degree unlawful imprisonment. Appellant affirmatively requested the

instructions on second-degree lawful imprisonment and he voiced no objection

to the instructions on first-degree unlawful imprisonment. Appellant did not

move for a directed verdict on those charges.

      On appeal; Appellant seeks palpable error review of the trial court's

failure to grant, sua. sponte, directetj. verdicts on the charges of first-degree



      s Dickerson v. Commonwealth, 174 S.W.3d 451, 466 (Ky. 2005) (quoting Foster
v. Commonwealth, 827 S.W.2d 670, 683 (Ky. 1991)).

                                          8
 unlawful imprisonment. As grounds for his argµment, appellant asserts that

 the Commonwealth failed to prove an essential element of first-degree unlawful

 imprisonment as defined by KRS 509.020(.1): that A.H. and T.T. were exposed

 to a risk of serious physical injury.6 We conclude the Appellant is not entitled

 to the relief he seeks.

           A "directed verdict of acquittal [is properly granted] when the defendant

 is entitled to a complete acquittal, i.e., when looking at the evidence as a whole,

 it would be clearly unreasonable for a jury to find the defendant     gui~ty,   under

 any possible theory, of any of the crimes charged in the indictment or of any

 lesser included offenses." Campbefl v. Commonwealth, 564 S.W.2d 528, 530

 (Ky. 1978) (emphasis added); accord Baker v. Commonwealth, 973 S.W.2d 54,

 55 (Ky. 1998); Acosta v. Commonwealth, 391S.W.3d809, 817 (Ky. 2013).

       Notwithstanding Appellant's failure to move for the directed verdict he

 now claims he should have had, upon application of the above-stated rule, the

 actual question, properly framed, is whether Appellant was entitled to a

 directed verdict acquitting him. of the primary charge of kidnapping and its

· lesser included offenses. Addressing that question requires a look at the

 evidence as a whole to determine if it would be clearly unreasonable for a jury

 to find him guilty of kidnapping or either of the two lesser included offenses of

first-degree and second-degree unlawful imprisonment.




       6  KRS 509.020(1) provides that "[a] person is guilty of unlawful imprisonment in
the first. degree when he knowingly and unlawfully restrains another person under
circumstances which expose that person to a risk of serious physical injury."

                                           9
       Since Appellant expressly r:equested instructions on second-degree

unlawful imprisonment, he conceded the evidence was suffident on that

charge. 7 He contends only that it was clearly unreasonable for the jury to find

him guilty of first-degree unlawful imprisonment. Based upon Campbell,

Baker, and Acosta we conclude that the trial court did not err by failing to

enter a directed verdict.
                                                           '   I




       By couching his request for palpable error review in terms of the directed

verdict standard, Appellant    s~eks   to evade. the barrier that RCr 9.54(2) 8 poses

for the real issue he would have us address: whether the trial court erred by ·

instructing the jury on first-degree
                               .
                                     unlawful imprisonment
                                               .
                                                           in light of the scant

evidence of a risk of serious physical injury to A.H. and T.T. To preserve his

claiin that_

       the evidence is insufficient to sustain the burden of proof on one or
       more, but less than all, of the issues presented by the case, the
       correct proc,edure is to object to the giving of instructions on those
       particular issues. . . . The appropriate proeedure here would thus
       have been for appellant, at the close of the evidence and before the
       instructions were given, to apprise the trial court that he objected
       to the giving of [the first-degree unlawful imprisonment
       instruction] for the reason that [the crime] had not been
       sufficiently proven.




       7 KRS § 509.030(1) provides that "[a] person is guilty of unlawful imprisonment
in the second degree when he knowingly and unlawfully restrains another person."

  .    s RCr 9.54(2) states: No party may assign as error the giving or the failure to
give an instruction unless the party's position has been fairly and adequately
presented to the trial judge by an offered instruction or by motion, or unless the party
makes objection before the court instructs the jury, stating specifically the matter to
which the party objects and the ground.or grounds. of the objection.

                                         I   10
 Kimbrough u. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977); accord

 Campbell, 564 S.W.2d at 530.

      ·In Martin u. Commonwealth, 409 S.W.3d 340 (Ky. 2013), we clarified the

effect of RCr 9.54(2)i on palpable error review of unpreserved claims of

erroneous jury instructions .. "Although palpable error under RCr 10.26 may be

available for certain kinds of instructional error ... RCr 9.54(2) bars palpable

error review for unpreserved claims that the trial court erred in the givihg or

the failure to give a specific instruction." Id. at 345. Appellant did not object to

giving of jury instructions on first-degree unlawful imprisonment anq so the

trial court's decision to give those instructions is not subject to palpable error

review. We see no reason to obliquely address the same issue under the guise

of a directed verdict issue when it is clear that Appellant was not entitled to· a

directed verdict of acquittal on the primary charge of kidnapping.

                                  III. CONCLUSION
         For the reasons stated above, we affirm the judgment of the Scott Circuit

Court.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Erin Hoffman Yang
Assistant Public Advocate



                                         11
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Thomas Allen Van De Rostyne
Assistant Attorney General




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