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Gray v. Commonwealth

Supreme Court of Kentucky

December 14, 2017

JOHN GRAY APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

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

          COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas Allen Van De Rostyne Assistant Attorney General.

          OPINION

          VENTERS JUSTICE.

         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 sentence 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 and 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.

         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 related offenses that occurred earlier. Appellant was indicted on four counts of violating an EPO, three counts of kidnapping, first-degree burglary, and being a first-degree persistent felony offender (PFO).[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."

         1. 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 hear evidence of the threat that precipitated the issuance of the 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).

         KRE 404(b) is a rule of exclusion barring the admission of evidence of "other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." However, KRE 404(b) 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)(1). And, such evidence may be admitted if it is "so inextricably intertwined with other evidence essential to the case ...


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