APPEAL FROM GREENUP CIRCUIT COURT HONORABLE ROBERT B. CONLEY,
JUDGE NO. 16-CR-00003
COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Jeffery Allan Cross Assistant Attorney General
MINTON, CHIEF JUSTICE
circuit court jury found John Daniel Clark (" JD")
guilty of murder and two counts of tampering with physical
evidence. The jury recommended a sentence of 35 years'
imprisonment, which the trial court adopted, entering
judgment accordingly. JD now appeals the judgment as a matter
of right, raising several issues for review. Finding
no reversible error, we affirm the judgment.
individuals gathered at the residence of Johnny Bill Clark
("JB"). Among them were JB, appellant JD (JB's
son), Todd Anthony Rowe (the deceased victim), Samantha Clare
(JD's sister and Rowe's girlfriend), and Darrell
that same day, Samantha Clare and Goble were talking inside
Goble's residence when JD arrived and asked Samantha
Clare to step outside to speak with him. Goble testified that
as they returned, he heard JD say, "I'm going to
kill him," but Goble did not know to whom JD was
referring when he said this.
Rowe invited Goble to JB's residence. While there
listening to music with Samantha Clare, Goble looked up and
saw JB straddling Rowe's back, apparently choking him. JD
then approached JB and Rowe and shot Rowe.
called 911 as he ran out of the residence. As he fled, he saw
JD slide another shell into the shotgun. He then heard two
Clare confirmed that she heard JD say he was going to hurt
"somebody," telling police that JD told her that if
Rowe laid another hand on her, he was going to hurt Rowe.
While at JB's residence, Samantha Clare remembered
hearing a thud that caused her to turn and see JB and Rowe
fighting on the floor and JB had Rowe in a headlock.
Samantha Clare attempted to pull JB off Rowe, she saw JD
coming down the hall with a shotgun. She testified that JD
was frantic and screaming at them to stop because they were
hurting Samantha Clare. JD then aimed the shotgun and told
Samantha Clare to get out of the way. JD then shot Rowe
twice, first in his left side and then in the head.
Clare escaped the house and called 911, stating, "They
killed my boyfriend. . . . Please help me before they shoot
me." She also said, "They're trying to bury him
and they're trying to burn him. Please help me. . . .
They've been trying to get him outside the house."
witness, Rhonda Prince, testified that before the incident
she had a conversation with JD and two other individuals
about Rowe and Samantha Clare coming into town. One of the
individuals commented that he was dreading it, to which JD
stated, "It's O.K. We'll get him."
enforcement responding to the incident found Id. at
Prince's house. Upon detaining and interviewing JD, he
initially denied any involvement in the crime. JD then
changed his story, admitting that "there were a few
things he was not completely honest about," but he never
confessed to having pulled the trigger.
JB were both charged with Rowe's murder and two counts of
tampering with physical evidence. The jury found JD guilty of
murder and two counts of tampering with physical evidence,
recommending a total sentence of 35 years' imprisonment,
which the trial court accepted, entering judgment
The trial court did not err when it denied JD's motions
for directed verdict on the charges of tampering with
claims the trial court erred by denying his motions for
directed verdict on the two tampering-with-physical-evidence
charges. This issue is indisputably preserved for appellate
appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for
the jury to find guilt, only then is the defendant entitled
to a directed verdict of acquittal."
person is guilty of tampering with physical evidence when,
believing that an official proceeding is pending or may be
instituted, he . . . [d]estroys, mutilates, conceals, removes
or alters physical evidence which he believes is about to be
produced or used in the official proceeding with intent to
impair its verity or availability in the official
first charge of tampering with physical evidence stemmed from
his alleged handling of Rowe's body after the shooting.
When authorities arrived, they found Rowe's body outside
the residence. Testimony from the examining coroner revealed
that the body appeared to have been dragged over the
threshold of the residence, as supported by scrape marks
appearing on the back and buttocks of the body. Testimony
from the doctor performing the autopsy revealed abrasions on
the back that "could be" consistent with the
dragging of the body across a surface. An investigating
detective testified that it appeared Rowe's body had been
dragged through patches of blood to the front door of the
residence. Samantha Clare testified that she told the 911
dispatcher, "They're trying to bury [Rowe] and
they're trying to burn [Rowe]. Please help me. . . .
They've been trying to get [Rowe] outside the
of our "generally-applied, fundamental principle that a
jury verdict may properly be based upon reasonable inferences
drawn from the evidence" requires upholding the trial
court's denial of JD's motion for directed verdict.
"A jury is entitled to draw all reasonable inferences
from the evidence[.]" "The jury is instructed to reach
its verdict from the evidence;' and if there [is]
competent and relevant evidence affording a reasonable and
logical inference or conclusion of a definite fact, this
court will not invade the jury's province to weigh
conflicting evidence, judge the credibility of witnesses and
draw the ultimate conclusion."
reject JD's argument that insufficient evidence existed
to convict him of tampering with physical evidence by moving
Rowe's body. Testimony from Goble and Samantha Clare
established that JD shot Rowe inside the residence and that
JD remained inside the residence for a period after Goble and
Samantha Clare ran outside. Two lab reports proved the
presence of blood on JD's clothing, shoes, and hands.
Testimony from three individuals established the dragging of
Rowe's body from inside the residence to outside the
residence. Finally, in the minutes after the shooting,
Samantha Clare told 911 dispatchers that "they"
were attempting to burn and bury Rowe.
all this testimony together, the jury could logically
conclude that JD, the individual who shot Rowe, intended to
remove Rowe's body from the scene to avoid criminal
liability. And, possessing this intent, JD altered the state
of Rowe's body by changing its condition and removing it
from its original location-dragging the body from inside the
residence to the outside, producing the abrasions and scrapes
found on the body. The trial court did not err in denying
JD's motion for a directed verdict on this charge.
second evidence-tampering charge stemmed from the apparent
attempted cleanup of Rowe's blood from surfaces inside
the residence. An investigating detective testified to seeing
bloody smears on the countertop and floor and rags and a
white towel soaked in blood, all evidence of an attempt to
wipe traces of Rowe's blood. The detective testified that
he found a jug of bleach on the kitchen countertop, although
he admitted that he could not detect any odor of bleach
inside the residence. Finally, Prince testified that, upon
arrival at her house, JD asked her if he could wash his
hands, which she noticed had blood on them.
this testimony and the other evidence presented, the jury
could have reasonably believed that JD intended to wipe away
traces of blood from the residence to avoid criminal
liability. In effectuating this intent, the removal of some
of the blood from the floor with rags and a towel altered the
condition of the crime scene. The trial court did not err in
denying JD's motion for a directed verdict on this
No reversible error occurred from the trial court's jury
instructions on protection of another.
argues that the trial court committed reversible error by
improperly instructing the jury on his protection of another
defense. The Commonwealth disputes the preservation of this
issue, but the Commonwealth's preservation argument does
not require fuller analysis here because the trial
court's error is harmless nonetheless.
trial court agreed that the jury should be instructed on the
full range of homicide crimes, including both perfect and the
so-called imperfect protection of another defense. The
evidentiary basis for the giving of perfect and imperfect
protection of another instructions was JD's defense
theory that he shot Rowe amid an affray between JB and Rowe
to protect JB from being harmed by Rowe.
makes two arguments on this issue. First, he argues that the
trial court misstated the law in its second-degree
manslaughter and reckless homicide instructions. Second, he
argues that the trial court's instructions did not allow
the jury to consider fully the imperfect protection of
another defense because the instructions did not comply with
this Court's stated model instructions as embraced in
Commonwealth v. Hager.
Commonwealth concedes error in the trial court's jury
instructions as to the second-degree manslaughter and
reckless homicide instructions but insists that the trial
court's error did not prejudice JD. We agree that the
trial court's instructions on second-degree manslaughter
and reckless homicide were erroneous, but we hold this error
is harmless because it had no impact on the jury's
verdict. We also hold that any purported error arising from
the instruction's nonconformance with Hager is
instruct the jury on the protection of another defense, JD
tendered for the trial court's consideration a single
jury instruction that contained both perfect and imperfect
protection of another theories. He also tendered a murder
instruction that incorporated the protection of another
defense by requiring the jury, among the other requisite
elements of the offense, to find that JD was not privileged
to act in protection of another if the jury believed JD shot
instructions given by the trial court defined perfect
protection of another followed by a murder instruction that
mirrored the one tendered by JD. But the trial court
incorporated imperfect protection of another into the