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CHRISTOPHER GRIBBINS                                                   APPELLANT


                  ON APPEAL FROM MARION CIRCUIT COURT
V.                    HONORABLE DAN KELLY, JUDGE
                             NO. 12-CR-00128


COMMONWEALTH OF KENTUCKY                                                APPELLEE


               OPINION OF THE COURT BY JUSTICE HUGHES

                                   AFFIRMING

      Christopher Gribbins appeals as a matter of right from a judgment of the

Marion Circuit Court sentencing him to twenty years' imprisonment for

murder. Ky. Const. § 110(2)(b). Gribbins alleges that the jury instructions

inaccurately presented the law of self-protection and that the combination

instruction for intentional and wanton murder resulted in a non-unanimous

verdict. Additionally, Gribbins alleges that the trial court erred in denying his

motion for directed verdict. Finding no error, we affirm the judgment and

sentence of the Marion Circuit Court.

                     FACTS AND PROCEDURAL HISTORY

      During the evening of November 8, 2012, David Litsey was out with

friends visiting the Raywick Bar and Grill. Litsey was accompanied that

evening by his cousin, Marcus Gerton, and his friends Marquis Douglas,
Deshawn Douglas, and Joseph Moore. At the end of the evening, the group

rendezvoused at their vehicle, but Moore was not present. Subsequently,

Marquis Douglas walked back to the bar to look for Moore, and Litsey drove

their vehicle to the entrance to the bar where a crowd had gathered.

      Litsey exited his vehicle and entered the crowd to look for Moore.

However, the mood of the crowd was hostile, with multiple fights taking place.

While still in the crowd, Litsey was shot and, despite quick transport to the

hospital by his friends, died shortly thereafter. After the shooting, police

arrived at the bar to secure the crime scene and begin an investigation. Early

in their investigation, Christopher Gribbins, the owner of the Raywick Bar and

Grill, emerged as a suspect. When interviewed after the shooting, Gribbins

initially lied to investigators claiming that he did not know anything about

Litsey's death.

      On November 19, 2012, Gribbins was indicted for Litsey's murder under

both the intentional and wanton provisions of Kentucky Revised Statute (KRS)

507.020. During the resulting trial, the jury heard testimony from a number of

eyewitnesses to the shooting. Gerton testified that while Litsey was trying to

stop the fighting in the crowd he was pushed into Gribbins. Gribbins then

attempted to pistol whip Litsey and the gun went off. Another witness, Katie

Edelen, testified that after the two men had a brief exchange Gribbins began

pistol whipping Litsey. During that assault, the gun discharged killing Litsey.

       Gribbins's assault on Litsey prior to the shooting was also supported by

the testimony of Sabrina Newton. Newton witnessed Gribbins repeatedly strike
Litsey in the shoulder with the pistol, prior to the gun's discharge. Another

witness, Jonathan Colvin, recalled that Litsey and Gribbins had initially faced

off from each other, with both men exhibiting a confrontational stance. Colvin

recalled that Gribbins was whipping Litsey with the handgun when the gun

discharged

      The jury also heard from William Cochran, who testified that he heard

Gribbins say "they're surrounding me." In response, Gribbins pointed his

handgun in Litsey's direction and it discharged. Similarly, Nicholas Keeling

testified that he overheard Gribbins admit to intentionally shooting Litsey.

Marquis Douglas also testified as to the intentional nature of the shooting,

recalling that he watched a man walk towards Litsey, brandish a gun, and

shoot him.

      In his defense, Gribbins testified as to his version of that evening's

events. Gribbins alleged that after being confronted outside the bar in an

aggressive manner by Litsey he drew his handgun to protect himself.

Additionally, Gribbins admitted that while the handgun was in his right hand,

he had placed his right hand on Litsey's chest. While the handgun was aimed

at Litsey it discharged, killing him.

      After weighing all the testimony and physical evidence, the jury found

Gribbins guilty of wanton murder. The jury recommended a penalty of twenty

years' imprisonment which was adopted by the trial court in its final judgment.




                                         3
                                     ANALYSIS

I. The Trial Court Properly Instructed the Jury

      Gribbins argues that the trial court erred by failing to accurately instruct

the jury on self-protection. In particular, he alleges that the trial court's

instructions permitted the jury to return a murder conviction, prior to

considering whether to convict him of a lesser included offense due to imperfect

self-defense. However, the trial court's instructions were proper as they were

in accord with prior decisions of this Court.

      It is well established that the trial court is required to instruct the jury

on the "whole law of the case, and this rule requires instructions applicable to

every state of the case deducible or supported to any extent by the testimony."

Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky

Rule of Criminal Procedure (RCr) 9.54(1); Kelly v. Commonwealth, 267 S.W.2d

536, 539 (Ky. 1954)). Additionally, the trial court is required to "instruct the

jury on all lesser-included offenses which are supported by the evidence."

Yarnell v. Commonwealth, 833 S.W.2d 834, 837 (Ky. 1992) (citing Cannon v.

Commonthealth, 777 S.W.2d 591 (1989)); McClellan v. Commonwealth, 715

S.W.2d 464 (Ky. 1986). While we evaluate the trial court's decision to instruct

on a specific claim for an abuse of discretion, the substantive content of the

jury instructions will be reviewed de novo. Sargent v. Schaffer, 467 S.W.3d

198, 204 (Ky. 2015).




                                          4
      Gribbins begins by arguing that the trial court's instructions failed to

accurately address the elements of self-protection as required under KRS

503.120 and our prior decisions in Elliott v. Commonwealth, 976 S.W.2d 416

(Ky. 1998) and Commonwealth v. Hager, 41 S.W.3d 828 (Ky. 2001).

      In Elliott, this Court departed from a line of authority that had precluded

the assertion of a self-protection defense to the charges of wanton murder,

second-degree manslaughter, and reckless homicide. 976 S.W.2d at 422. The

Elliott Court determined that when there is evidence to support self-protection

as a defense to an offense whose culpable mental state is wanton or reckless,

the trial court is required to instruct the jury on self-protection.   Id. However,

Elliott stressed that the subjective belief of a defendant in his assertion of self-

protection is not absolute. Id. at 419. Rather, Elliott recognized that the

application of imperfect self-defense was circumscribed and qualified by KRS

503.120. Id.

      Under KRS 503.120, a defendant cannot shield himself from prosecution

if he was unreasonable in his belief or if an innocent third party was harmed.

Id. at 419-420. However, if a defendant was wanton or reckless in his belief

that force was necessary for self-defense, he would be entitled to an instruction

on a lesser-included offense under a theory of imperfect self-defense.      Id. at

420. Accordingly, lip' the charged offense is intentional murder or first-degree

manslaughter, a wantonly held belief in the need for self-protection reduces the

offense to second-degree manslaughter and a recklessly held belief reduces the

offense to reckless homicide." Id. n.3.


                                          5
       This Court further clarified the law concerning imperfect self-protection

in Hager. In Hager, Justice Cooper, writing for the Court, addressed how the

application of KRS 503.120 affected the defense of self-protection when

asserted to an offense with a wanton or reckless mental state. 41 S.W.3d at

842. Additionally, Hager provided specimen recommended instructions for

imperfect self-protection under the various degrees of homicide.          Id. at 844-

847.

       In the case at bar, the trial court's instructions are nearly identical to the

exemplars contained in William S. Cooper and Donald P. Cetrulo's, Kentucky

Instructions to Juries, Criminal § 11.07 (5th ed. 2007) [hereinafter Cooper's

Instructions]. 1 While Cooper's Instructions are not binding on this Court, we

have previously noted their persuasive value.        Gonclaves v. Commonwealth,

404 S.W. 3d 180, 193 n.5 (Ky. 2013), as corrected (Mar. 14, 2013). Gribbins

acknowledges the persuasive value of Cooper's Instructions, but he mistakenly

concludes that the imperfect self-protection instruction contained in the fifth

edition of Cooper's Instructions does not substantially comport with our

decision in Hager. In fact, the trial court's instructions, and the exemplars

from Cooper's Instructions on which they were modeled, have only two minor

          There are minor differences between the trial court's instructions and the
exemplars from Cooper's Instructions. In particular, the trial court properly omitted
portions of Cooper's Instructions, where the facts of the case did not support giving a
portion of an instruction (e.g., no language was included in trial court's instructions
concerning extreme emotional disturbance). Additionally, the trial court's instructions
include the instructions for intentional and wanton murder under a single instruction
titled "intentional murder." This differs from Cooper's Instructions, which properly
titles the instruction "murder." While the trial court's instruction should have been
titled "murder" (as the instruction addressed both intentional and wanton murder) the
title of instruction did not cause reversible error, nor is it raised as such by Gribbins.

                                             6
organizational and stylistic differences from the example promulgated by

Hager.

      The first organizational difference between the trial court's instructions

and the example from Hager concerns the placement of the self-protection

instruction. The trial court's instructions address self-protection before moving

on to the various degrees of homicide; whereas the instructions outlined in

Hager do not address the law regarding self-protection until after all of the

substantive offenses are outlined. 41 S.W.3d at 847. The trial court's

placement of the self-protection instruction earlier in the trial court's

instructions was appropriate and inured to Gribbins's benefit because it

introduced the jury to the legal concept of self-protection before addressing the

various degrees of homicide.

      As Hager explained, where sufficient evidence has been presented by a

defendant to justify an instruction on self-protection, the Commonwealth is

required to disprove that defense beyond a reasonable doubt, and its absence

becomes an element of the offense.     Id. at 833, n.1 (citations omitted). Because

the law of self-protection was presented early on in the instructions, the jury

was aware of the self-protection defense before they were informed of the

elements of each of the substantive homicide offenses. Thus, as the jury

encountered the murder, manslaughter, and reckless homicide instructions

(Instructions 4-7), the last element of each, i.e., "he was not privileged to act in

self-protection," already had meaning because self-protection as recognized in

Kentucky was explained in Instruction No. 3 immediately after the initial


                                          7
instructions regarding the presumption of innocence and definitions. The

placement of the self-protection instruction earlier in the trial court's

instructions did not run afoul of our decision in Hager and, in fact, provided

the jury with a more logical approach to this often-complicated area of the law.

      The second organizational difference concerns how the trial court's

instructions and the example from Hager differ in presenting the law of

imperfect self-protection. The example from Hager includes all information

concerning self-protection and imperfect self-protection together in one

freestanding instruction. That instruction explains how a defendant's wanton

or reckless exercise of self-protection would affect each previously discussed

substantive offense. In contrast, the trial court's instructions, mirroring those

found in Cooper's Instructions, address the impact of imperfect self-protection

within each section of the instructions where it applies, i.e., second-degree

manslaughter and reckless homicide.

      As noted, in each of the trial court's instructions for the various degrees

of homicide, the jury was required to find that Gribbins was not privileged to

act in self-protection. Additionally, in the instructions for second-degree

manslaughter and reckless homicide the jury was provided with the law of

imperfect self-protection because if the jury believed Gribbins had a wanton or

reckless belief in the need for self-protection or the degree of force needed those

two offenses were the ones pertinent to their verdict. By including this

imperfect self-protection language within the relevant substantive offenses, the

trial court made evident to the jury what the proper result should be, if the jury
were to conclude that Gribbins's exercise of self-protection was reckless or

wanton.

      Contrary to Gribbins's assertions, the trial court's instructions and the

exemplars from Cooper's Instructions on which they were modeled are in accord

with Hager. The trial court's instructions permitted the jury to fully consider

theories of self-protection and imperfect self-protection in determining whether

he was guilty and the appropriate degree of homicide. Gribbins's argument

that the jury could have found him guilty of murder prior to considering

imperfect self-protection simply has no merit. Jury instructions are not

considered in a vacuum, rather "instructions must be considered as a whole,

taking into account the evidence and closing argument of counsel."     Epperson

v. Commonwealth, 197 S.W.3d 46, 60 (Ky. 2006). Through the trial court's jury

instructions, which were read to the jury in their entirety, and the arguments

of counsel during closing argument, the jury was fully informed of the law of

the case and the different verdicts that they could return before they even left

the courtroom to deliberate. There was no error.

II. The Combination Murder Instruction Did Not Violate Gribbins's Right
    to a Unanimous Verdict

      Gribbins next argues that the trial court erred by giving the jury a

combination instruction which permitted Gribbins to be convicted of either

intentional or wanton murder. While most appellants attack the absence of

proof supporting one of the two theories, Gribbins alleges that there was

insufficient evidence to support the jury being instructed on either intentional



                                        9
or wanton murder. 2 This is essentially a directed verdict argument but

because he raises a unanimous verdict claim we will address the relevant law.

      Gribbins was entitled to a unanimous jury verdict under Section 7 of the

Kentucky Constitution. Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky.

1981); Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). The right to a

unanimous verdict is not violated by a combination instruction so long as there

is sufficient evidence to convict under both theories of culpability and the

jurors are satisfied beyond a reasonable doubt that the defendant is guilty

under one of the theories.    Travis v. Commonwealth, 327 S.W.3d 456, 459-60

(Ky. 2010).

      The combination instruction was proper as there was sufficient evidence

presented during the trial to warrant an instruction for both intentional and

wanton murder. The intentional murder instruction was supported by the

testimony of three witnesses. The first witness, Marquis Douglas, testified that

he witnessed a man, later identified as Gribbins, walk towards Litsey, brandish

a gun, and shoot him. The second witness, Gerton, also testified about the

intentional nature of the shooting. Gerton recalled that Gribbins initially tried

to strike Litsey with the gun, but failed to make contact. Gribbins then pointed

the gun at Litsey and it went off. The third witness, Keeling, testified that he



      2  Gribbins also alleges that the trial court failed to make the findings required
by Benjamin v. Commonwealth, 266 S.W.3d 775 (Ky. 2008). In Benjamin, the Court
expressed that a trial court should make a preliminary determination as whether there
is sufficient evidence to support a combination instruction. Id. at 785. In the case at
bar, the trial court complied with Benjamin, by evaluating the evidence and correctly
determining that a combination instruction was proper.


                                           10
did not see the shooting, but heard Gribbins admit to shooting Litsey in

response to Litsey's warning to Gribbins to not get involved in the melee.

Based on the testimony of these witnesses, an instruction for intentional

murder was warranted.

       Similarly, there was sufficient evidence presented at trial to justify the

wanton murder instruction. As Gribbins readily acknowledges, multiple

witnesses testified to Gribbins's pistol whipping of Litsey. In using a loaded

handgun, as a club to beat Listey, Gribbins consciously disregarded a

substantial and unjustifiable risk that the handgun might accidentally be

discharged and his conduct plainly created a grave risk of death to Litsey

under circumstances manifesting an extreme indifference to human life. Based

on the evidence, a rational juror could have concluded that Gribbins

intentionally killed Litsey or assaulted him with disregard of the grave risk

posed to his life. Therefore, the trial court's use of a combination murder

instruction was proper, and it did not violate Gribbins's right to a unanimous

verdict. 3




       3 Gribbins also alleges that the jury was confused by the combination
instruction which violated his right to a unanimous verdict. During deliberations the
jury asked whether wanton murder was addressed under the intentional murder
instruction or whether it was covered under its own instruction. The trial court, after
speaking with counsel, instructed the jury to refer to the instructions that they had
been given. The jury returned to its deliberations and after reviewing the court's
instructions specifically concluded that Gribbins was guilty of wanton murder, writing
that finding on the verdict form. There was no error.

                                           11
III. The Trial Court Properly Denied Isaac's Motion for a Directed Verdict
     of Acquittal.

      In his final argument, Gribbins alleges that the trial court erred in

denying his motion for directed verdict. Specifically, Gribbins argues that there

was insufficient evidence to support a guilty verdict for intentional or wanton

murder.

      The Due Process Clause of the Fourteenth Amendment to the United

States Constitution requires that a conviction be supported by proof of guilt

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct.

2781 (1979). "The question on appeal is whether, after viewing the evidence in

the light most favorable to the Commonwealth, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citing

Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)). Questions pertaining

to "the credibility of witnesses and the weight to be given to sworn testimony

are for the jury to decide."   Young v. Commonwealth, 50 S.W.3d 148, 165 (Ky.

2001) (citing Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999)).

      As noted, Gribbins's claims concerning the impropriety of the

combination jury instruction mirror his argument that his motion for directed

verdict was improperly denied. Gribbins alleges that Litsey's death was the

result of a "physical confrontation," and that he lacked the requisite mental

state to be convicted of either intentional or wanton murder. This is erroneous




                                         12
as there was more than sufficient evidence presented to support the denial of

the motion for directed verdict.

      First, as to the wanton murder instruction, there was sufficient evidence

for the jury to believe that Gribbins consciously disregarded a substantial and

unjustifiable risk which resulted in Litsey's death. Multiple witnesses testified

to seeing Gribbins pistol whip Litsey. Gribbins's use of a loaded weapon to

batter Litsey was done in disregard of the grave risk that the gun might

accidentally discharge during his assault. The trial court properly denied the

motion for directed verdict as to the offense of wanton murder.

      Similarly, there was sufficient evidence for the jury to believe that

Gribbins intentionally caused Litsey's death. There were two eyewitnesses to

the murder, who testified as to the intentional nature of the shooting. Marquis

Douglas, recalled that he witnessed an unknown man walk towards Litsey,

brandish a handgun, and shoot him. Likewise, Gerton testified that after

Gribbins tried to pistol whip Litsey with the handgun, Gribbins pointed the gun

at Litsey and it went off. These accounts were supported by the testimony of

Keeling, who overheard Gribbins's admission that he had intentionally shot

Litsey. Thus, the trial court also properly denied the motion for directed

verdict as to the offense of intentional murder.

                                   CONCLUSION

      For the foregoing reasons, we affirm the conviction and sentence of the

Marion Circuit Court.

      All sitting. All concur.


                                        13
COUNSEL FOR APPELLANT:

James I. Lowry
George Scott Hayworth


COUNSEL FOR APPELLEE:

Andy Beshear, Attorney General of Kentucky

Jason Bradley Moore
Assistant Attorney General




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