CHESTER KEITH COOGLE V. COMMONWEALTH OF KENTUCKY

Sergeant Taylor Miller, with the Hardin County Sheriffs Office, was on

patrol the evening of March 21, 2017 in a rural area of Hardin County near a

small cemetery. Sgt. Miller saw two vehicles pull onto the road leading into the

cemetery; they pulled up to the top of the road, in a small loop that leads back

around so vehicles can leave on the same road leading into the cemetery. The

vehicles then turned their headlights off. The cemetery was not lit and was

fairly secluded and quiet. Sgt. Miller pulled into the same road and, before

reaching the loop, stopped and turned on his emergency lights. Sgt. Miller

noticed that one of the vehicles was fairly beaten up with a broken windshield.

One of the drivers made a motion with his hand out the window to wave Sgt.

Miller out of the way. Sgt. Miller did not move, however. The driver then

floored his vehicle and drove around Sgt. Miller, back onto the main road,

going up onto the grassy area to get around Sgt. Miller’s vehicle. Sgt. Miller

initiated a pursuit of the vehicle that had fled; he saw the driver as he passed

and identified him later as the defendant, Coogle. Sgt. Miller activated his

lights and sirens as he pursued Coogle’s vehicle.

Coogle led Sgt. Miller down a path of country roads. The speed limit was

35 to 45 miles per hour; the road was sometimes curvy. Sgt. Miller estimated

Coogle to be driving at 55 to 70 miles per hour during the pursuit. Coogle

turned off the road into a property with a barn. Sgt. Miller knew there was no

exit in the back of the property, so he stayed in front of the barn on the

roadway as Coogle drove around from behind the barn. Sgt. Miller stated there

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was a security light near the barn, so the area was more well-lit than the other

areas during the pursuit. Sgt. Miller turned his vehicle around and watched as

Coogle reemerged from behind the barn.

Coogle paused for a moment in the driveway. Sgt. Miller got out of his

vehicle, drew his weapon, and yelled at Coogle to stop while making stopping

gestures with his hand. Coogle paused and then turned his car towards Sgt.

Miller and slammed on the gas, revving straight towards Sgt. Miller. Sgt. Miller

ran for cover behind his vehicle; Coogle drove by closely. Sgt. Miller testified

Coogle was close enough to his vehicle that he would not have been able to fit

between the two vehicles. Coogle drove off down the road. Sgt. Miller

discharged his gun at the retreating vehicle, worried that Coogle would turn

around and attempt to drive over him again. After getting back into his vehicle,

Sgt. Miller attempted to relocate Coogle but did not see his vehicle again at that

time.

Eventually, officers, including Sgt. Miller, found the vehicle further away

where Coogle had crashed into a tree on the side of the road. Officers searched

the vehicle and found a couple of glass pipes, one of which had residue later

identified as methamphetamine, a cut straw, and other small baggies. There

was also a bullet hole in the trunk of the vehicle and the bullet was found

inside the trunk of the car, identified as the bullet discharged by Sgt. Miller.

Sgt. Miller also later discovered that Coogle had an active warrant for his arrest

at the time of this incident and the ensuing pursuit, presumably leading to his

flight after Sgt. Miller first approached his vehicle.

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II. ANALYSIS

A. Double Jeopardy

Coogle was indicted on several charges. The jury was presented with

instructions on the following crimes: (1) attempted murder with lesser included

offenses of: attempted first-degree assault; third-degree assault; first-degree

wanton endangerment; and second-degree wanton endangerment; (2) first-

degree fleeing or evading with a lesser included offense of second-degree fleeing

or evading; (3) first-degree possession of a controlled substance; and (4) use or

possession of drug paraphernalia. Based on the instructions, the jury found

Coogle guilty of: (1) third-degree assault; (2) first-degree fleeing or evading; (3)

first-degree possession of a controlled substance; and (4) use or possession of

drug paraphernalia. Coogle now alleges that, by instructing the jury on both

third-degree assault and first-degree fleeing or evading, the trial court violated

the constitutional proscription against double jeopardy.

Under Kentucky Revised Statute (KRS) 508.025:

(1) A person is guilty of assault in the third degree when the actor: a) Recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to: 1. A state, county, city, or federal peace officer; ...

The jury instruction on third-degree assault allowed the jury to find guilt on

that charge if:

A. That on [sic] this county on or about March 21, 2017, and before the finding of the Indictment herein, he attempted to cause physical injury to Sergeant Taylor Miller by driving his motor vehicle at him; AND B. That Sergeant Taylor Miller was a police officer acting in his course of his official duties and the Defendant knew that he was acting in the course of said official duties.

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KRS 520.095 states that:

(1) A person is guilty of fleeing or evading police in the first degree: a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and ... 4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property ...

The instruction to the jury stated that Coogle could be found guilty of fleeing or

evading, first degree, if the jury determined beyond a reasonable doubt:

A. That in this county on or about March 21, 2017, and before the finding of the Indictment herein, he operated a motor vehicle with the intent to flee or elude; AND B. That he knowingly or wantonly disobeyed a direction to stop his motor vehicle, which direction was given by a person whom he recognized to be a police officer; AND C. That his act of fleeing or eluding caused or created a substantial risk of serious physical injuiy or death to any person or serious injury to property.

Coogle argues that his constitutional right1 to be free of double jeopardy was

violated because the convictions required two conflicting states of mind.

Coogle concedes this issue is unpreserved and requests palpable error review

under Rule of Criminal Procedure (RCr) 10.26. “To establish palpable error,

[Coogle] must show ‘the probability of a different result or error so fundamental

1 See Ky. Const. § 13 (“No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.”) and U.S. Const, amend. V (“No person shall be subject for the same offence to be twice put in jeopardy of life or limb[.]”).

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as to threaten his entitlement to due process of law.” Huddleston v.

Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018) (quoting Brooks v.

Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007) (citation omitted)). Appellate

reviews focus “on whether ‘the defect is so manifest, fundamental and

unambiguous that it threatens the integrity of the judicial process.”

Huddleston, 542 S.W.3d at 245 (quoting Martin v. Commonwealth, 207 S.W.3d

1, 5 (Ky. 2006)).

Inconsistent Findings of Fact

Coogle alleges that his convictions for both third-degree assault and first

degree fleeing or evading violate the double jeopardy ban codified in KRS

505.020(l)(b). The statute states that a defendant cannot be convicted of two

offenses if “[i]nconsistent findings of fact are required to establish the

commission of the offenses[.]” The gist of Coogle’s argument is that, under the

instructions, the jury could have convicted Coogle of first-degree fleeing or

evading under the theory that he “wantonly” created a risk of injury while also

convicting him of third-degree assault under the theory that he “intentionally”

attempted to injure Sgt. Miller. Coogle argues that finding he acted both

wantonly and intentionally violates KRS 505.020(l)(b).

In Spicer v. Commonwealth, we determined that the defendant’s

convictions for both attempted murder and first-degree assault violated this

statutory, and constitutional, restraint. 442 S.W.3d 26, 30-31 (Ky. 2014).

“[T]o convict a defendant of attempted murder, the jury must find that [the

defendant] specifically intended during the attack to kill the victim. ... On the

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other hand, and quite inconsistently, for the jury to convict the same defendant

of first-degree assault for engaging in the same course of conduct, it must

determine that his specific intent was not to kill, but merely to cause serious

physical injury to the victim.” Id. at 30 (quoting Kiper v. Commonwealth, 399

S.W.3d 736, 744-45 (Ky. 2012)). “These inconsistent and mutually exclusive

findings of fact regarding [the defendant’s] mens rea at the moment he fired the

shots at [the victim] lead precisely to the same result that KRS 505.020(l)(b)

prohibits.” Spicer, 442 S.W.3d at 31 (quoting Kiper, 399 S.W.3d at 744-45).

In Montgomery v. Commonwealth, the Court of Appeals was faced with a

similar question. 505 S.W.3d 274, 279-80 (Ky. App. 2016). In that case, there

was an altercation between Montgomery and a police officer and Montgomery

charged at the police officer with a baseball bat. Id. at 277. Montgomery was

convicted of both second-degree wanton endangerment and third-degree

assault based on this incident. Id. at 279. The Court of Appeals determined

that:

The jury could have found Montgomery’s charge against [the officer] was intentional, resulting in assault, or it was wanton, resulting in wanton endangerment. Allowing both convictions, however, requires the jury to make inconsistent findings—that Montgomery was motivated by two different mental states for the same act against the same person.

Id. at 279-80.

The heart of Coogle’s argument is that he could not have both wantonly

and intentionally created a risk of injury to Sgt. Miller. However, he misreads

the statute on first-degree fleeing or evading. The “knowingly or wantonly”

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element refers to disobeying a police officer’s directive. The statute states: “the

person knowingly or wantonly disobeys a direction to stop his or her motor

vehicle” and then lists several conditions, only one of which must be met to

substantiate a first-degree fleeing or evading conviction. One of these

conditions is that “the person is the cause, or creates substantial risk, of

serious physical injury or death to any person or property[.]” This particular

condition has no “wanton” element. Thus, there is a fatal flaw in Coogle’s

argument here. The instructions did not require that the risk of injury was

both wanton and intentional. Instead, it allowed a conviction if Coogle

wantonly disobeyed a direction from the police officer (first-degree fleeing or

evading) but then also intentionally attempted to cause that same officer injury

(third-degree assault).

In both Spicer and Montgomery, the juries found two mental states in the

same actions by the defendant. In Spicer, the jury made findings that the

defendant acted with intent to kill and with intent to only injure in the same

attack. In Montgomery, the jury’s findings resulted in the defendant having

acted both wantonly and intentionally in attacking the police officer with a

baseball bat. However, here, the wanton and intentional conduct were

separate acts. Thus, the two mental states here were not referring to the same

action. Even under the instruction, the jury could have determined Coogle

wantonly disobeyed directives from Sgt. Miller but then intentionally attempted

to cause Sgt. Miller injury. As such, inconsistent findings were not required for

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both of Coogle’s convictions. Coogle’s right to be free of double jeopardy was

not violated here.

B. Unanimity

Coogle also argues that the jury instructions were erroneous and led to a

non-unanimous verdict. Coogle argues that the Commonwealth’s evidence

proved two separate acts that could have been the basis for the fleeing or

evading substantial risk element. First, Sgt. Miller provided testimony of the

risk to his own life as Coogle fled the scene. Second, Sgt. Miller also testified

that he witnessed Coogle almost running another vehicle off the road during

the pursuit. Coogle states that because the Commonwealth’s proof

substantiated the conviction in two ways, but the jury instructions failed to

specify the act, his right to a unanimous verdict was violated. Again, Coogle

failed to preserve this error and requests palpable error review.

The actual instruction in question allowed the jury to convict if it

determined that “[Coogle’s] act of fleeing or eluding caused or created a

substantial risk of serious physical injury or death to any person or serious

injury to property.” Coogle argues that this instruction led to the same kind of

unanimity error that this Court described in Martin v. Commonwealth, 456

S.W.3d 1, 6 (Ky. 2015). A unanimity error “occurs when a jury instruction may

be satisfied by multiple criminal acts by the defendant.” Brown v.

Commonwealth, 553 S.W.3d 826, 838 (Ky. 2018) (quoting Martin, 456 S.W.3d

at 7).

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However, when an instruction allows conviction under multiple theories,

this is not necessarily the same kind of unanimity error as described in Martin.

The Commonwealth argues that evidence at Coogle’s trial proved several

instances showing that Coogle created a serious risk of injury or death to other

people, establishing multiple theories or means of committing the crime of

fleeing or evading, first degree.

[A] ... jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime ... But ... a disagreement about means ... would not matter so long as all 12 jurors unanimously concluded that the Government had proved the necessary related element[.]

Brown, 553 S.W.3d at 839 (quoting Richardson v. United States, 526 U.S. 813,

817-18 (1999)). Thus, if a jury could disagree on the “means” as opposed to an

element of the crime, there is no unanimity violation.

In Brown, the Court determined the instruction allowing the jury to

determine Brown had committed theft by stealing “money or jewelry or car” was

not a unanimity error. Brown, 553 S.W.3d at 840. “The jury instructions

forced the jury to unanimous agreement on the fact that movable property was

taken, simply identifying three pieces of movable property that the jury could

have found to be taken.” Id. The jury agreed on the element of the crime: that

movable property was taken. Id. Hence, no unanimity error occurred. Id.

In Dunlap v. Commonwealth, the Court examined “instructions [that]

permit the jury to find aggravating circumstances based upon arson, burglary,

or rape for the murder, and arson, burglary, rape, or murder for the

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kidnapping charges, but it is unclear from the verdict forms whether the jury

unanimously based its verdict upon the same aggravator or aggravators.” 435

S.W.3d 537, 608 (Ky. 2013). The Court contrasted “jury instructions regarding

multiple instances of the same crime” and “multiple theories, all of which

support a conviction for the same offense and are therefore punishable by the

same penalties.” Id. at 609 (citations omitted). The Court held that the

different possible aggravators were “all different Theories’ that support a

conviction of the same ‘offense,’ i.e., the aggravating circumstance.” Id. This

Court has previously emphasized that “a ‘conviction of the same offense under

either of two alternative theories does not deprive a defendant of his right to a

unanimous verdict if there is evidence to support a conviction under either

theory.’” Shively v. Commonwealth, 542 S.W.3d 255, 264 (Ky. 2018) (quoting

Conrad v. Commonwealth, 534 S.W.3d 779, 784 (Ky. 2017) (quoting Miller v.

Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002))).

Here, the jury was permitted to determine within a series of incidents

and events whether that conduct constituted a substantial risk of serious

physical injuiy or death to any other person. The specific incidents listed by

both Coogle and the Commonwealth are all “brute facts” and ways of

establishing the means of committing the crime. The Commonwealth

presented evidence of several acts that would qualify as being sufficient to

create a substantial risk of danger: nearly running another person off the road,

attempting to run over Sgt. Miller, driving at high speeds when there were other

cars present on a curvy road, etc. All of these specific acts are means of

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committing the crime. The element itself—the substantial risk—was

unanimously determined to be present. As such, no unanimity violation

occurred.

C. Admissibility of Drone Video

Coogle next alleges error in the trial court’s admitting a video showing

the barn area where Sgt. Miller testified Coogle drove at him. The video was

created after the crime occurred. Sgt. Miller returned to the scene with an

aerial drone and recorded the route Coogle took around the barn, from Sgt.

Miller’s observation, that evening. The recording took place during the day, at

various heights to see the scene in full. Coogle argued the video was

inadmissible because it was (1) irrelevant; (2) unduly prejudicial; and (3) not

substantially similar to the actual incident that took place with Coogle. “As

with other types of evidence, the admissibility of experiment evidence is

discretionary; the trial court’s ruling will be disturbed on appeal only if that

discretion is abused.” Rankin v. Commonwealth, 327 S.W.3d 492, 499 (Ky.

2010) (citing Cecil v. Commonwealth, 297 S.W.3d 12, 20 (Ky. 2009) (citing

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

The parties discussed the admissibility of the drone video before opening

statements on the first day of trial.2 Defense counsel objected, stating the

footage was not an adequate representation of the events the night of the

incident. She argued that there were “lush greens” and “lush lawns”, affecting

2 The parties addressed this drone video as well as another recording of a reenactment of the pursuit at the same time prior to trial.

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the scene overall and the effect on the jury’s interpretation of this pursuit; the

recording was made four months after the March incident. She also clarified

that this was a daytime video and the pursuit occurred at night. Defense

counsel also argued that Sgt. Miller waited on the road while Coogle went

around the barn so the “route” taken by the drone was based on Sgt. Miller’s

assumption of the route that Coogle took when he was out of Sgt. Miller’s sight.

The Commonwealth stated it sought to admit the video to show the scene and

give context to where these events occurred.

The trial court, in a well-explained evaluation, held that the video was

not a reenactment, it was simply a video of an area where the events occurred.

It determined that there was no appreciable prejudice in showing a video rather

than a photograph, there was clearly probative value to show the intent to flee

from Coogle’s route that evening, and the differences in foliage were not

germane to the probative value. The trial court stated: “The point is, it shows a

path... This danger of undue prejudice does not substantially outweigh that

probative value.” The trial court delved into the differences but found those

differences did not impact the prejudicial or probative value of the drone

evidence.

In Rankin v. Commonwealth, this Court adopted the rule from the federal

courts that “experiment evidence is generally admissible if it bears upon a

material issue and if the proponent establishes a sufficient similarity between

the conditions of the experiment and those of the event in question.” 327

S.W.3d at 498 (citations omitted). The Court explained:

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If the experiment is offered as a simulation of actual events, then there must be substantial similarity between the experimental conditions and those which are the subject of the litigation. [However, if] the experiment is not meant to simulate what happened, but rather to demonstrate some general principle bearing on what could or what was likely to have happened, then the similarity between the experimental and the actual conditions need not be as strong. [No matter the purpose of the experiment,] the similarities must be such as to afford a fair comparison, and the court should be mindful of the significant risk of undue prejudice inherent in dramatic presentations offered to the jury as reenactments.......... If the experiment evidence is sufficiently similar to be probative and if its probative value is not outweighed by undue prejudice, then differences between the experiment and the event at issue go to the weight of the evidence, not its admissibility.

Id. at 498-99 (citations omitted).

“Generally speaking, the results of out-of-court experiments are generally

admissible in evidence if such evidence tends to enlighten the jury and enable

them to more intelligently consider the issues or if they provide evidence more

satisfactory or reliable than oral testimony.” Stevens v. Commonwealth, 462

S.W.2d 182, 185 (Ky. 1970) (citing Lincoln Taxi Co. v. Rice, 251 S.W.2d 867 (Ky.

1952)). “Such evidence is never admissible, however, unless the conditions

under which the experiment was performed were substantially similar to the

case under consideration.” Stevens, 462 S.W.2d at 185-86 (citing Ohio County

Drug Co. v. Howard, 256 S.W. 705 (Ky. 1923)).

Here, the probative value under Kentucky Rule of Evidence (KRE) 401 is

clear. Describing the geographic area of this rural scene was difficult for any

officer or witness; it was even harder to appreciate and picture as a listening

jury member. The aerial footage was extremely helpful in assisting the jury to

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understand all the testimony presented in the context of where the parties were

on the evening described. This was not a reenactment video and was not

purported to be. The drone video only attempted to show the scene itself, not

what occurred between Coogle, Sgt. Miller, and anyone else on the road that

evening. As such, the similarities do not need to be quite as substantial as a

reenactment video.

We agree with the trial court that the differences here (foliage, season,

and timing) are simply not germane to the probative value the video had for the

jury. “[T]he experiment’s obvious limitations can reasonably be deemed to go

to its weight as evidence, not to its admissibility.” Rankin, 327 S.W.3d at 499

(see also United States v. Metzger, 778 F.2d 1195, 1204 (6th Cir. 1985) (quoting

Szeliga v. Gen. Motors Corp., 728 F.2d 566, 567 (1st Cir. 1984)) (“Indeed, most

‘[dissimilarities between experimental and actual conditions affect the weight

of the evidence, not its admissibility.’”). The parties clarified to the jury that

this was not a reenactment or live footage; they clarified that the events took

place in the night rather than during daytime lighting. We cannot hold that

the court abused its discretion in allowing this video. The probative value was

high; the prejudicial value was low. The video showed nothing outlandish or

offending; it merely showed the scene of the crime. Additionally, the video was

similar enough to be probative and admissible under KRE 401, 403, and

Rankin. The trial court did not err in admitting the video.

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D. Prosecutorial Misconduct

Coogle also alleges that the Commonwealth committed prosecutorial

misconduct by asking him questions on cross-examination that implied he was

a drug trafficker. Coogle testified on the second day of trial; he was the

defense’s only witness. The Commonwealth conducted an extensive cross-

examination. In relevant part, the following exchange occurred between the

prosecutor and Coogle.

CW:3 Now, you had a pipe that day, correct? CC:4 Yes, sir. CW: And you also had baggies? CC: Yes, sir. CW: Okay. Some of those baggies were unused, is that correct? CC: Yes. CW: Okay. What do you use an unused baggie for? CC: You can use it for many things DC:5 Objection. TJ:6 Mmm, I’m going to overrule that objection. Um I see where he’s going with this. It’s relevant to the intent to flee. Uh - why - so what was going on, what did he suspect he might be arrested for, so overruled. Go ahead. CC: What did I use them for? [Shrug] Uh puts meth in, put - uh, uh, they’re used for all kinds of things. You can buy them at smoke shops. CW: Buy them at smoke shops? CC: Yes, sir. CW: And the scales - how about scales? Would you agree with me that an individual-typically a user doesn’t carry scales, correct? DC: Objection, your honor, may we approach? TJ: No, you may not. Overruled. Go ahead. CW: Typically a user doesn’t have scales, correct? CC: No, pretty much everybody I know owns a set of scales.

3 Commonwealth 4 Coogle 5 Defense Counsel 6 Trial judge

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CW: Traffickers do too, correct?7 CC: I don’t know. CW: You don’t know if a - you ever seen anybody weigh dope out? CC: No. CW: When you would buy your dope, would they weigh the dope out? CC: No. CW: They just give it to you? CC: [No answer]

The Commonwealth asked further questions about who Coogle was with that

evening but refrained from further references to trafficking. The remainder of

the cross-examination focused on Coogle’s intent that night and the danger he

created to other people.

“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act

involving an attempt to persuade the jury to wrongly convict a defendant or

assess an unjustified punishment.”’ Dickerson v. Commonwealth, 485 S.W.3d

310, 329 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116, 121

(Ky. 2011) (citation omitted)). “It can take a variety of forms, including

improper questioning and improper closing argument.” Dickerson, 485 S.W.3d

at 329 (citing Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)).

“Although the Commonwealth is granted latitude in presenting its argument

and raising objections, the prosecutor must nonetheless ‘stay within the record

and avoid abuse of defendants and their counsel.”’ Caudill v. Commonwealth,

374 S.W.3d 301, 309 (Ky. 2012) (quoting Whitaker v. Commonwealth, 183

S.W.2d 18 (Ky. 1944)). “While it is the duty of the prosecutor to advance the

7 We must note that the Commonwealth asserted in its brief that “the Commonwealth never used the word trafficker.” This was clearly incorrect from review of the record.

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Commonwealth’s case with persuasiveness and force, he or she has a

concomitant duty not to derogate from a fair and impartial criminal

proceeding.” Caudill, 374 S.W.3d at 309 (quoting Commonwealth v. Mitchell,

165 S.W.3d 129, 132-33 (Ky. 2005)).

This Court will “reverse for prosecutorial misconduct only if the

misconduct is ‘flagrant’ or if each of the following three conditions is satisfied:

(1) Proof of defendant’s guilt is not overwhelming; (2) Defense counsel objected;

and (3) The trial court failed to cure the error with a sufficient admonishment

to the jury.” Caudill, 374 S.W.3d at 312 (citing Barnes v. Commonwealth, 91

S.W.3d 564, 568 (Ky. 2002) (citing United States v. Carroll, 26 F.3d 1380, 1390

(6th Cir. 1994) and United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979))).

The Court utilizes a “four-factor test to determine whether a prosecutor’s

improper comments constitute reversible flagrant misconduct.” Dickerson, 485

S.W.3d at 329.

(1) Whether the remarks tended to mislead the jury or to prejudice the accused; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed before the jury; and (4) the strength of the evidence against the accused.

Id. (quoting Mayo v. Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010) (quoting

Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010))). The “review

must center on the essential fairness of the trial as a whole, with reversal being

justified only if the prosecutor’s misconduct was ‘so improper, prejudicial, and

egregious as to have undermined the overall fairness of the proceedings.”’

Dickerson, 485 S.W.3d at 329 (quoting Brewer v. Commonwealth, 206 S.W.3d

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343, 349 (Ky. 2006) (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky.

2004))). Thus, the first issue is whether there was error in this line of

questioning. If so, then we must consider whether that misconduct was

“flagrant” or if the three-part test is satisfied to warrant reversal.

KRE 404(b) prohibits admission of “other crimes, wrongs, or acts ... to

prove the character of a person in order to show action in conformity

therewith.” There are certain exceptions allowing such admission, but the rule

is “exclusionary in nature” and “any exceptions to the general rule that

evidence of prior bad acts is inadmissible should be ‘closely watched and

strictly enforced because of the dangerous quality and prejudicial

consequences of this kind of evidence.”’ Clark v. Commonwealth, 223 S.W.3d

90, 96 (Ky. 2007) (quoting O’Bryan v. Commonwealth, 634 S.W.2d 153, 156

(Ky. 1982)). “There are three inquiries, which together, provide a useful

framework for determining the admissibility of other crimes evidence.” Bell v.

Commonwealth, 875 S.W.2d 882 (Ky. 1994) (citation omitted). A court should

ask: (1) “Is the other crimes evidence relevant for some purpose other than to

prove the criminal disposition of the accused?”; (2) “Is evidence of the

uncharged crime sufficiently probative of its commission by the accused to

warrant its introduction into evidence?”; and (3) “Does the potential for

prejudice from the use of other crimes evidence substantially outweigh its

probative value?” Id. at 889-90.

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Although the trial court did not reference KRE 404 in its decision, it did

address these concerns generally. In holding these questions permissible, the

trial court stated:

What [the prosecutor’s] trying to do is to show uh if someone - is there a difference between the intent of someone who may have possession of meth and the difference in the intent of someone who believes they may be arrested for trafficking activity - would that weigh into their intent as to what they would do to get away? Would that weigh into their intent as to whether they would or would not attempt to strike an officer? That is relevant and probative evidence. So, if he is with someone and you know if he wants to show that there is evidence of trafficking then he can present that. It doesn’t matter that he didn’t charge him with it. It’s relevant to the charges that are being tried right now.

My point is that it is relevant, it is germane, it is particularly relevant to intent that night, which is the issue in the case. So, in terms of relevance, I will overrule any objection to that um

The probative - because intent is the issue we’re all talking about and what he’s thinking - you know, if this police officer gets me, he’ll see I’m tiying to get away, I had warrants, I had that, and if there was evidence of trafficking, that figures in to what was his intent that night. It is highly probative and is not unduly prejudicial because it’s evidence of what happened that night. I think we already know about scales, we already know about baggies. So, I’m going to overrule the objection.

Had this issue been presented to the Court as a trial error, we would review its

decision under an abuse of discretion standard. See Anderson v.

Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). Were we to view the

questions through this lens, we would be hard-pressed to find an abuse of the

trial court’s discretion here. The trial court examined the relevance of the

evidence, its probative value, Coogle’s defense (lack of intent), the main issues

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presented to the jury, the potential prejudice resulting from the admission, and

made a well-reasoned and sound decision. The decision is also firmly rooted

within the case law of KRE 404(b).

Generally, it will be a unique and rare circumstance when evidence of

uncharged trafficking crimes is admissible in a trial for unrelated crimes. In

Gordon v. Commonwealth, this Court found “no legitimate need to say or imply

that appellant was a drug dealer or that he was suspected by the police

department of selling drugs in a particular vicinity.” 916 S.W.2d 176, 179 (Ky.

1995). “Admission of this evidence branded appellant a drug dealer, violated

his right to confront and cross-examine witnesses, denied his right to be tried

only for the crime charged, and in general, bolstered the credibility of the police

informant to the point where appellant’s denial of criminal conduct would have

appeared preposterous.” Id. (see also Graves v. Commonwealth, 384 S.W.3d

144, 148-51 (Ky. 2012)). In contrast, however, we determined evidence of

uncharged undercover drug buys was admissible “to demonstrate Appellant did

in fact have knowledge of the drugs recovered from” his home. Muncy v.

Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004). It also proved his “intent to

sell the drugs.” Id. at 847-48. Recognizing that “it would typically be improper

for the Commonwealth or a testifying witness to refer to the undercover buys” if

the defendant is not on trial for those charges, this Court still determined that

the circumstances of that case made the previous buys admissible. Id. at 847-

48. Given Coogle’s defense and the evidence presented at trial, we cannot say

that the trial judge’s decision here was necessarily an abuse of discretion. As

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such, we cannot say that the Commonwealth committed prosecutorial

misconduct. However, given the highly prejudicial nature of implying that a

defendant is a drug trafficker, we would caution both prosecutors and trial

courts to conduct a thorough examination and colloquy before admitting such

evidence.

Even if these statements were admitted in error, we cannot hold that the

questions rose to the level of reversible prosecutorial misconduct. “Reversal is

only justified when the alleged prosecutorial misconduct is so serious as to

render the trial fundamentally unfair.” Wheeler v. Commonwealth, 121 S.W.3d

173, 189 (Ky. 2003) (citing Summit v. Bordenkircher, 608 F.2d 247 (6th Cir.

1979)). The Commonwealth’s cross-examination of Coogle was extensive. But

the reference to trafficking was isolated and fleeting. Coogle admitted to most

of the crimes charged; he merely argued he never intended to harm Sgt. Miller

that evening. Given these circumstances, these comments did not render

Coogle’s trial fundamentally unfair.

B. Sentencing Exhibits

Pursuant to KRS 532.055(2)(a), the Commonwealth may introduce

evidence at sentencing about a defendant’s prior convictions. This Court has

held that “[i]t is clear from the statute that the legislature intended for juries to

be able to consider more information about a defendant’s prior criminal history

than just the identification of ‘prior convictions.’” Mullikan v. Commonwealth,

341 S.W.3d 99, 108 (Ky. 2011). However, this Court has also clearly held that

“the evidence of prior convictions is limited to conveying to the jury the

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elements of the crimes previously committed.” Id. at 109. Coogle alleges that

the jury was inadvertently given access during sentencing to the certified

copies of his prior convictions, which included in-depth and clearly

inadmissible information about those convictions. The Commonwealth seems

to concede that, had such information been given to the jury, it would have

been error. However, the Commonwealth asserts that the only information

given to the jury was a two-page summary of prior convictions and none of the

certified records (which contained the details, citations, etc.) were ever given to

the jury. They were, instead, supplied to the trial court to maintain in the

record.

In reviewing the record, the prosecution handed the probation and parole

officer a thick file of papers that he identified to the court as the certified

records at the beginning of her testimony. In reviewing the convictions with

the officer, the prosecutor identified the forms the witness was reviewing as

Commonwealth’s Exhibit 8.8 The Commonwealth specifically asked whether

the records were certified, and the officer said, yes. The Commonwealth moved

to enter Commonwealth’s Exhibit 8 into evidence and it was admitted without

objection from the defense. After preparing jury instructions and awaiting the

jury’s return, the judge asked the Commonwealth, holding up what appeared

8 Coogle’s allegation of error here stems from this Exhibit in the record. Included with the trial exhibits is a packet of pages marked as Commonwealth’s Exhibit 8 and includes the two-page summary and. all the certified records. However, once again, we cannot tell whether this was attached before or after sentencing. From the video record, the parties and judge seem to treat these as two separate collections rather than one exhibit.

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to be one or two pieces of paper, “So you intended - this is the exhibit?” The

prosecutor responded, “I intended for the certified copies to go in the record for

- for the record.” The judge responded, “That’s fine.” The prosecutor made a

comment that is not clearly audible, and the judge added, “Well without the

extraneous information.” After closing arguments, the judge told the jury that

there was one additional exhibit, holding up what again appeared to be one or

two pieces of paper, and handed it to the bailiff to take back during the jury’s

deliberations along with the original set of sentencing instructions.

From this Court’s review of the record and sentencing proceedings, it is

unclear what exactly was given to the jury during its sentencing deliberations.

Such a lack of clarification creates a conundrum for this Court to address on

appellate review. But, “[i]t is the responsibility of the appellant to present a

complete record to this Court for review.” Graves v. Commonwealth, 283

S.W.3d 252, 255 (Ky. App. 2009) (citing Chestnut v. Commonwealth, 250

S.W.3d 288, 303 (Ky. 2008)). “When the record is incomplete, we assume the

omitted record supports the trial court’s decision.” Graves, 283 S.W.3d at 255

(citing Commonwealth v. Thompson, 697 S.W.3d 143, 145 (Ky. 1985) (citing

Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 604 (Ky.

1968))). “This Court is not in the business of making baseless presumptions.

It is incumbent upon Appellant to present the Court with a complete record for

review.” Chestnut, 250 S.W.3d at 303 (citations omitted). “When the record is

incomplete, this Court must assume that the omitted record supports the trial

court.” Id. (citing Thompson, 697 S.W.2d at 145). “We will not engage in

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gratuitous speculation as urged upon us by appellate counsel, based upon a

silent record.” Chestnut, 250 S.W.3d at 303 (citing Thompson, 697 S.W.2d at

145).

We note that Coogle has not asserted any proof from the record that the

jury actually reviewed these certified records during its deliberations. It was

quite possible for defense counsel to obtain affidavits from the jury members as

to whether those documents were sent back during deliberations. We have no

such evidence. The video record shows the trial judge handing documents to

the bailiff but it is impossible to tell exactly what those documents are,

although it appears to be fewer papers than all the certified records. Without

more,9 we cannot presume that the trial court erred. We are “not in the

business of making baseless presumptions.” See Chestnut, 250 S.W.3d at 303.

“We will not engage in gratuitous speculation[.]” See id. Thus, we must hold

that there is no reversible error as Coogle suggests.

For the foregoing reasons, we hereby affirm, in all respects, the judgment

and sentence of the Hardin Circuit Court.