APPEAL FROM SCOTT CIRCUIT COURT HONORABLE ROBERT G. JOHNSON,
JUDGE NO. 14-CR-00217.
COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Thomas Allen Van De Rostyne Assistant Attorney
John Wesley Gray, appeals from a judgment of the Scott
Circuit Court convicting him of three counts of violating a
protective order, 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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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). 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.
Evidence of Appellant's "other crimes, wrongs, or
The evidence of Appellant's prior threat against Hardy
was not improper.
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. 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
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 ...