JEFFREY JONES V. COMMONWEALTH OF KENTUCKY

Lebanon, Kentucky criminal defense lawyer represented Defendant, Jeffrey Jones, who was charged with first-degree assault, tampering with

physical evidence, resisting arrest, six counts of third-degree criminal mischief

and being a first-degree PFO. The charges stemmed from allegations that

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Jones beat James Burdine with a hammer, causing serious physical injury and

then tampered with evidence by trying to hide the hammer. Additionally,

Jones was charged with causing six troopers called to the crime scene to walk

through briars behind a shed in an effort to find him, damaging their clothing.

Finally, once apprehended by police, Jones took his hands off the hood of his

car after being told not to do so. Jones and Burdine both testified at trial and

told different versions of the night�s events.

On March 4, 2018 Jones was going through a foreclosure. He rented a

U-Haul to remove personal property from his home. He owned another

property near the foreclosed home, so he loaded the U-Haul with his belongings

and took them to a shed on the nearby property. Jones hired Robert Spurling

and James Burdine to help him move.

Burdine testified that he was helping Jones move his belongings from his

foreclosed home to a shed, but that he, Burdine, was not helping load or

unload the boxes because he had a pinched nerve from a back surgery and

walked with a cane. Burdine stated that the men were drinking, and

everything was going smoothly. Burdine�s wife, Tara Lyons, called and wanted

him home for dinner so Burdine asked Jones to take him home, but Jones

refused. Burdine stated that he then asked his wife to come pick him up and

he said he was at a �burnt down� house that was situated before Jones�s

house. Hearing the remark, Jones came at him with a hammer in his hand and

warned him not to tell anyone he burnt down a house.

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Burdine tried explaining to Jones that he was merely describing his

location to his wife, using the house as a landmark. The two began arguing.

Burdine testified that he grabbed the hammer, causing Jones to fall back and

Burdine landed on top of him. Burdine asked Jones why he was acting like

that, and Jones apologized and told Burdine to get up. Then Jones told him

that he needed to get off his property. Burdine called his wife to tell her to

hurry up. While he was on the phone, Jones said, �here, tell her this,� and hit

Burdine on the back of the head with a hammer, causing him to black out.

When Burdine awoke, Jones was sitting on Burdine�s chest hitting him with

the hammer, saying, �die, son of a bitch, die.� Burdine testified that he could

not see but kept hitting redial on his phone. He stated that he knocked the

hammer so that Jones could not reach it, but Jones then grabbed him around

the neck.

At that point Lyons arrived with the couple�s daughter and the

daughter�s fianc�. Burdine�s daughter testified that she could hear her father

screaming, so she jumped out of the truck and ran toward him. She stated

that she saw Jones on top of Burdine and could see a lot of blood. She tried to

get Jones off her father, but Jones came at her. By that time her fianc� made

it to the scene and Jones went behind the shed. Lyons took Burdine to the

hospital where he was treated for nine broken ribs and facial fractures around

his eye and other parts of his face.

Jones testified at trial about a different sequence of events. He testified

that he had been moving due to his house being in foreclosure. He had been

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moving for three days and Burdine wanted to help on the fourth day, so Jones

picked him up. Jones believed that Burdine did not have a license. Jones

rented a U-Haul that had to be returned that evening. Jones testified that

Burdine was not doing much work and kept getting aggravated that Jones was

leaving him out of conversations and not talking to him while he was trying to

work. At some point, Burdine demanded to be paid $20 and driven home.

Jones made it clear that he intended to pay him, but that he did not have

change � he only had six one-dollar bills and a few $100 bills. Burdine wanted

$100. Jones said, �What do you want to do, fight?� and it was agreed that it

was what Burdine wanted. Jones took his coat off and scraped a line in the

dirt and said, �Come on across that line, let�s get this over with.� But Burdine

backed down and did not want to fight. Jones suggested that they get back to

work. Burdine got upset that Jones did not pay him and started banging on a

wooden post with the hammer. Burdine said he would hold on to the hammer

until he was paid. When Jones took the hammer away from him, Burdine used

his elbow to hit Jones in the head. The two wrestled over the hammer until

Burdine pushed Jones, causing him to fall into a bunch of briars. Jones feared

that if Burdine got to the hammer he would be dead.

While Burdine was on top of Jones, Jones asked what was wrong with

him. Burdine repeatedly stated he wanted to get paid. According to Jones,

Burdine slung the hammer somewhere and told Jones �I could have killed

you.� Jones agreed and tried to get back to work. Jones walked to Burdine,

grabbed him and tried to lead him off the property. Burdine told Jones to get

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his hands off him and threw his elbow to the left of Jones�s head, hitting him.

Burdine stuck his fists up. Jones testified that he hit him three times as a

natural defense because Burdine hit him first. Burdine went to the ground

and Jones fell on top of him. Burdine tried calling him a son of a bitch, but

before he could get it out Jones grabbed him by the throat. Jones had one

knee on his chest and the other on his arm.

Jones told Burdine that once he got off of him Burdine needed to leave

the property. Jones walked over to the shed, and around the same time,

Burdine�s ride arrived and he left. Jones finished loading the moving truck and

waited for his cousin to return the truck to where he rented it. It was cold, so

he waited in his truck. He stated that he did not leave the property between

the time Burdine left and when police arrived. He testified that he never hit

anyone with the hammer and was not sure what happened to the hammer.

At the close of evidence, the trial court granted directed verdicts on the

resisting arrest charge and the six counts of third-degree criminal mischief.

The only evidence of resisting arrest was Jones moving his hands off the car,

which the trial court determined was insufficient. Additionally, while some of

the troopers testified about ripping their pants while walking through briars in

search of Jones, Jones did nothing to cause any damage to the troopers� pants.

The jury found Jones not guilty of tampering with evidence for allegedly

trying to hide the hammer but convicted Jones of second-degree assault and of

being a first-degree PFO. The jury recommended a five-year prison sentence

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enhanced to twenty years by virtue of the PFO conviction and the trial court

sentenced Jones in accordance with the jury�s recommendation.

ANALYSIS

Jones now appeals as a matter of right, raising four allegations of error:

(1) the trial court erred by not instructing the jury on extreme emotional

disturbance; (2) the trial court erred by not excluding evidence of Jones� s

alleged arson and smoking a glass pipe on the night in question; (3) the

Commonwealth placed undue pressure on the jury to convict him; and (4) the

prosecutor engaged in misconduct.

I. Jones was not entitled to an extreme emotional disturbance

instruction.

Under Kentucky Revised Statute (KRS) 508.040, when a first- or seconddegree assault pursuant to KRS 508.020 is committed under EED, it is

mitigated to a Class D felony. KRS 508.040 states that

[i]n any prosecution under KRS 508.010, 508.020 or

508.030 in which intentionally causing physical injury or serious

physical injury is an element of the offense, the defendant may

establish in mitigation that he acted under the influence of

extreme emotional disturbance, as defined in subsection (1)(a) of

KRS 507.020.

KRS 507.020(1)(a) references acting

under the influence of extreme emotional disturbance for which

there was a reasonable explanation or excuse, the reasonableness

of which is to be determined from the viewpoint of a person in the

defendant's situation under the circumstances as the defendant

believed them to be.

The jury was instructed on self-protection and first-, second- and fourthdegree assault with a hammer, and second- and fourth-degree assault with his

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fists. The jury found Jones guilty of second-degree assault with use of his fists.

Second-degree assault is a Class C felony and the jury sentenced Jones to five

years for the assault, but enhanced his sentence to twenty years for being a

first-degree PFO. Because of the enhancement, the jury could have imposed a

sentence ranging from ten to twenty years. If the trial court had instructed the

jury on assault under EED, and the jury found him guilty under such

instruction, it would have constituted a Class D felony. KRS 508.040(2)(a).

But since the jury also found Jones to be a first-degree PFO, the jury still

would have considered a sentence ranging from ten to twenty years, as the PFO

enhancements are the same for both Class C and D felonies. KRS

532.080(6)(b). So we note from the outset that the sentencing options would

not have differed even if the EED instruction had been given.

Turning to Jones�s EED argument, Burdine testified at trial that Jones is

usually a nice guy, and that on the night of the assault he �flipped a switch�

and went from �daylight to dark.� Jones requested an EED instruction for the

assault charge but the trial court denied the request, finding insufficient

evidence that Jones acted under EED. Specifically, the trial court noted that

the testimony from Jones, Burdine and Spurling indicated that there were

several �dust ups� between Jones and Burdine, but that they made peace with

each other right up until the assault. Jones counters that he was entitled to

an EED instruction because he was provoked by Burdine �accusing him of

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burning down his own house,�

1 and that sudden and uninterrupted

provocation immediately preceded the assault.

�When the question is whether a trial court erred by . . . not giving an

instruction that was required by the evidence; the appropriate standard for

appellate review is whether the trial court abused its discretion.� Sargent v.

Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). A trial court abuses its discretion

when its ruling is �arbitrary, unreasonable, unfair, or unsupported by sound

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

EED has been defined by this Court as follows:

Extreme emotional disturbance is a temporary state of mind so

enraged, inflamed, or disturbed as to overcome one's judgment,

and to cause one to act uncontrollably from the impelling force of

the extreme emotional disturbance rather than from evil or

malicious purposes. It is not a mental disease in itself, and an

enraged, inflamed, or disturbed emotional state does not constitute

an extreme emotional disturbance unless there is a reasonable

explanation or excuse therefor, the reasonableness of which is to

be determined from the viewpoint of a person in the defendant's

situation under circumstances as defendant believed them to be.

McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).

To be entitled to an EED instruction, the evidence had to reflect a

sudden and uninterrupted triggering event, that Jones was extremely

emotionally disturbed as a result, and that he acted under the influence of that

disturbance. The reasonableness of a claim of EED is evaluated subjectively

from the defendant�s point of view. Holland v. Commonwealth, 466 S.W.3d



1 As we note throughout this opinion, no one testified that Burdine ever made

that accusation. He simply referred to the �burnt out� house as a landmark when

giving his wife directions on where to pick him up.

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493, 503 (Ky. 2015) (citing Spears v. Commonwealth, 30 S.W.3d 152, 154 (Ky.

2000)).

Jones testified that Burdine was standing by a post with Jones�s hammer

and was beating the post with the hammer every time Jones walked past him.

This scared Jones because Burdine was giving him a hateful and spiteful look.

Jones stated that he felt threatened and told Burdine to put the hammer down,

but Burdine refused. Jones reached for the hammer and took it from Burdine,

bumping into his head. He stated that Burdine came at him, trying to get the

hammer. Jones feared getting hurt. He testified that Burdine pushed him

back into a bunch of briars and Jones feared that if Burdine got to the hammer

he would kill him. Once the two men got up, Burdine told Jones he could have

killed him if he wanted.

Jones testified that Burdine repeatedly cursed at him. Burdine elbowed

Jones in the side of the head, trying to get him off him. Jones said he then hit

Burdine three times in defense. Burdine tried calling Jones a son of a bitch,

but before he could get it out Burdine went to the ground, and Jones was on

top of him. Jones testified that he was mad. He grabbed Burdine by the throat

and had one knee on his chest, the other on his arm. Jones told Burdine, �You

just think son of a bitch one more time, I swear to God I�m going to beat you to

death.� Jones testified that he again told Burdine he needed to leave, and then

got up. Jones�s testimony reflected that he felt scared and threatened by

Burdine.

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On cross-examination, Jones testified that he was mad and that Burdine

�pushed him too far.� The only other testimony that would support an EED

instruction came from Burdine who testified that Jones �turned from daylight

to dark� and that he was the nicest guy any other time. Although Jones

testified that he was mad, most of his statements suggested fear. Regardless of

whether fear can support an EED instruction, we conclude the evidence here

did not rise to the level of an extreme emotional disturbance.

Jones�s testimony primarily supported a self-defense theory, a theory

reflected in the jury instructions. Of course, a trial court must instruct the

jury on the whole law of the case, meaning it must give �instructions applicable

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

testimony.� Keeling v. Commonwealth, 381 S.W.3d 248, 264 (Ky. 2012). Selfdefense and extreme emotional disturbance are not mutually exclusive

defenses. �Self-protection and emotional disturbance are separate defenses

and the presence of the former does not automatically trigger the latter,

although under certain circumstances and with certain evidence, both might

well be justified.� Carwile v. Commonwealth, 656 S.W.2d 722, 723 (Ky. 1983).

While a trial court may properly instruct on both self-protection and EED, it

was not warranted in this case. The events described by the witnesses

reflected continuing arguments and physical altercations between the two men

but not that Jones suffered from an enraged, inflamed temporary state of mind

that caused him �to act uncontrollably from the impelling force� of an EED.

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As for Burdine�s description of the �burnt out� house being a triggering

event, Tara Lyons, Burdine�s wife, testified that while she was on the phone

with Burdine he said he was �at the burnt-out house that Jones owns.� She

also said that Burdine described that �You�ll see the U-Haul, and it�s the burntout house before you get to Jeff�s.� After her testimony, a state trooper who

was involved in the investigation testified that in attempting to find where

Jones was, he called Lyons and asked to speak with Burdine. The trooper

went to Jones�s residence, but he was not there. Still unsure as to where the

assault took place, the trooper asked a neighbor, who pointed to a location in

which there was an �old burned down house.� The last bit of testimony

pertaining to the burnt house came from Jones himself. When asked what is

at 840 Maple Road, he stated that �There used to be a rental house there, and

it got burnt down . . . I don�t remember what year it was.�

Based on all the testimony, there is no indication that Burdine ever

accused Jones of committing arson by burning down the house. Burdine

simply used the burnt house as a landmark in attempting to describe his

location to his wife and to the trooper. None of the witnesses alleged that

Jones burned the house or testified that he had been otherwise accused of that

act. While we agree with Jones that an allegation of arson might trigger an

extreme emotional disturbance in the proper circumstances, the testimony in

this case was entirely insufficient to warrant an EED instruction on that basis,

even when viewing the evidence in a light most favorable to Jones.

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Additionally, as the trial court stated, the two men scuffled several times

prior to the assault over payment.2 Each time the men got into altercations,

there seemed to be evidence of reconciliation or time in which Jones could have

�cooled off.� Jones testified that Burdine became aggravated over payment,

and Jones asked him if he wanted to fight. Jones said, �Let�s get this over

with.� This statement shows that Jones contemplated a physical altercation

with Burdine even before Burdine made the comment about the burnt house.

In Burdine�s version of events, after the initial altercation, which occurred

when Burdine called his wife and used the burnt house as a landmark to get to

his location, he stated that Jones apologized to him. The two apparently made

amends. Additionally, Spurling, the third man present, told a trooper that he

saw Jones and Burdine arguing over the hammer on the ground for a short

period of time, but then they helped each other up and even drank a beer and

smoked a cigarette together.

Jones did testify regarding his state of mind, indicating that he was

scared of Burdine, concerned about getting hurt with the hammer, and that he

felt threatened. On cross-examination Jones said he was mad and that

Burdine pushed him too far. However, none of this testimony elicited at trial

rises to the level of proving that Jones suffered from an �enraged, inflamed, or



2 According to Burdine�s testimony, he and Jones scuffled once prior to the

assault. Jones believed Burdine told his wife that he committed arson and Jones

approached Burdine with a hammer, which the two scuffled over. Then the assault

occurred when Burdine called his wife a second time. According to Jones, there were

two scuffles prior to the assault � the first attempt to fight indicated by Jones drawing

a line in the dirt, a second scuffle over the hammer, then the assault.

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disturbed� state of mind, McClellan, 715 S.W.2d at 468, and that an extreme

emotional disturbance overcame his judgment. Evidence of �mere hurt or

anger� is simply insufficient to warrant an EED instruction. Talbott v.

Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998) (citing Thompson v.

Commonwealth, 862 S.W.2d 871 (Ky. 1993)).

The evidence surrounding Jones�s assault of Burdine was conflicting but

none of the accounts would justify instructing the jury on the defense of

extreme emotional disturbance. After careful consideration, we conclude the

trial court did not abuse its discretion by declining to give an EED instruction.

II. No reversible error occurred in the admission of KRE 404(b)

evidence.

Approximately a week and a half prior to trial the Commonwealth filed

notice of its intent to introduce evidence under KRE 404(b). The

Commonwealth sought to introduce evidence that immediately prior to the

assault, Jones told Burdine he better not tell anyone that Jones burned his

own house down. The Commonwealth posited that for some reason Jones

clearly thought Burdine was telling people that he had committed a crime and

therefore was angry with Burdine. Additionally, the notice stated that Burdine

would testify that Jones was smoking a small glass pipe on the day in question.

The trial court conducted a hearing, and Jones objected to the introduction of

the KRE 404(b) evidence. Jones argued that the notice was untimely because

it was so close to trial and he needed time to investigate the circumstances

surrounding the burnt house. Defense counsel also stated that Burdine never

mentioned how the house burned or who was responsible, he simply referenced

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the burnt house when describing his location. Finally, defense counsel argued

that introduction of testimony about the burnt house or the glass pipe would

be unduly prejudicial to Jones and confuse the jury.

The trial court determined that the intended testimony about the house

would merely be a recital of statements Jones made in a conversation that took

place between Jones and his victim. The trial court noted that Jones would be

able to challenge the testimony on cross-examination by highlighting that

Burdine did not disclose this information earlier and never mentioned it in his

initial statements to police. Ultimately the trial court determined that the

comment about the burnt house could have been the motive for the assault,

and that the testimony was inextricably intertwined with the assault. Further,

the trial court ruled that the prejudicial effect of the testimony did not outweigh

its probative value. Jones argues that the trial court erred in allowing the

testimony but we find no abuse of discretion.

As to the alleged drug use, the trial court stated that it did not need to

decide the issue prior to trial. In its handwritten ruling, the trial court stated it

would address testimony of alleged drug use at trial because it needed to

determine whether the Commonwealth laid a proper foundation. Notably,

while Jones objected to this testimony prior to trial, he did not object during

Burdine�s testimony. We review a trial court�s decision on admitting evidence

for an abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.

2007). A trial court abuses its discretion when its ruling is �arbitrary,

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unreasonable, unfair, or unsupported by sound legal principles.� English, 993

S.W.2d at 945.

KRE 404(b) states:

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. It may, however,

be admissible:

(1) If offered for some other purpose, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential

to the case that separation of the two (2) could not be

accomplished without serious adverse effect on the offering

party.

This rule is �exclusionary in nature.� Bell v. Commonwealth, 875 S.W.2d 882,

889 (Ky. 1994). We address Jones�s argument regarding KRE 404(b) and the

alleged arson and drug use separately.

While Jones classifies the testimony regarding the burnt house as an

allegation that he committed arson, it hardly amounts to such. Burdine

testified that he gave his wife directions to get to his location, and he stated,

�I�m at the house before you get to Jeff�s . . . the burnt down house before you

get to Jeff�s other house.� Jones apparently interpreted this statement as an

allegation of arson and threatened Burdine that he must never tell anyone that

he burned the house down. Burdine further testified that he never said Jones

burnt the house down, he was merely describing his location to his wife.

Burdine testified that Jones was angry after Burdine made the comment to his

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wife, which supports the trial court�s reasoning that this evidence was offered

to show a potential motive for the assault.

In addition, Lyons and one of the troopers testified about the burnt

house, but both merely referred to it as a landmark and did not use it to allege

that Jones committed arson. We agree with the trial court that the testimony

was inextricably intertwined with the assault because it was part of the larger

scheme of disagreements and scuffles between Burdine and Jones on the day

in question. Burdine testified that the first scuffle with Jones happened after

Burdine used the burnt house as a landmark while on the phone with his wife.

Therefore KRE 404(b)(1) and (2) were both satisfied, rendering the evidence

admissible and the trial court�s ruling proper.

Jones also argues that the trial court erred in allowing Burdine to testify

that Jones was smoking from a glass pipe before the assault. To determine the

admissibility of evidence under KRE 404(b), this Court must consider

relevance, probative value and prejudice. Bell, 875 S.W.2d at 889-91. �[T]he

burden lies with the prosecution to provide an alternate base for admission of

the evidence apart from its propensity relevance.� Anderson v. Commonwealth,

231 S.W.3d 117, 120 (Ky. 2007). Here, the Commonwealth did not lay a proper

foundation for the evidence. The prosecutor questioned Burdine about

additional information he gave the police a few weeks prior to trial, and he

stated that he told them about the arson comment prior to the assault and

seeing Jones smoking a glass pipe. The Commonwealth did not establish an

alternative reason for introducing the testimony under KRE 404(b)(1) and never

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suggested that the alleged pipe smoking was related to the assault.

Additionally, under KRE 404(b)(2), it was not �inextricably intertwined with

other evidence essential to the case . . . .� (emphasis added). Therefore, the

trial court erred in admitting such testimony.

However, we conclude that this error was harmless. �A nonconstitutional evidentiary error may be deemed harmless . . . if the reviewing

court can say with fair assurance that the judgment was not substantially

swayed by the error.� Winstead v. Commonwealth, 283 S.W.3d 678, 688-89

(Ky. 2009) (citing Kotteakos v. United States, 328 U.S. 750 (1946)). Here we can

say �with fair assurance� that the mere mention of Jones�s smoking a glass

pipe did not substantially sway the jury�s judgment on the charges and

defenses presented.

At trial, Burdine testified that right before the assault he saw Jones

smoking a glass pipe. Burdine did not speculate as to what was in the pipe,

and only stated that Jones did not smoke marijuana and he was not smoking

tobacco. That was the only mention of drug use. While Jones points to two

potential jurors who expressed reservations regarding drug use neither of those

venire panel members sat on the jury in Jones�s case, rendering their

reservations immaterial. Jones was able to question the credibility and

accuracy of Burdine�s testimony on cross-examination, especially noting that

Burdine�s first mention of the glass pipe occurred just a few weeks before trial.

In sum, while the admission of the glass pipe testimony was error, it was

harmless error.

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III. The Commonwealth did not place undue pressure on the jury to

convict.

During closing argument in the guilt phase of the trial, the

Commonwealth told the jury that the judge and police officers do not enforce

the law and that only the jury could enforce the law against Jones. Defense

counsel objected to these statements and argued that the Commonwealth was

giving a �send a message� closing argument. The Commonwealth responded

that it referred to Jones specifically throughout its explanation about enforcing

the law, making it clear the jury should apply the law to the evidence

presented. The trial court overruled the objection. Jones now argues that he

is entitled to a new trial because of the Commonwealth�s improper pressure on

the jury to convict.

On a claim of prosecutorial misconduct, �[w]e will reverse . . . only if the

misconduct was �flagrant� or if we find all of the following to be true: (1) the

proof of guilt is not overwhelming, (2) a contemporaneous objection was made,

and (3) the trial court failed to cure the misconduct with a sufficient

admonition.� Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016).

�In reviewing such claims, we must always consider these closing arguments as

a whole and keep in mind the wide latitude we allow parties during closing

arguments.� Id. at 331 (citations omitted).

Jones claims that the Commonwealth placed undue community pressure

on the jury. In Cantrell v. Commonwealth, 288 S.W.3d 291, 297-98 (Ky. 2009),

during the penalty phase the prosecutor essentially highlighted the dangers

methamphetamine poses to communities and urged the jury to impose the

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maximum sentence on a defendant charged with various drug charges. This

Court reasoned that �so long as the jury is well aware that it is sentencing the

particular defendant before it�with his or her good points and bad�on the

crime for which he or she has been convicted, there is no prejudice in the

prosecutor commenting on the deterrent effect of that sentence.� Id. at 299.

Additionally, �[a]ny effort by the prosecutor in his closing argument to shame

jurors or attempt to put community pressure on jurors� decisions is strictly

prohibited.� Id. The Court also reiterated its disapproval of �send a message�

arguments during the guilt phase. Id.

While Cantrell specifically addressed closing arguments in which the

prosecutor places undue community pressure on the jury during the penalty

phase, the same reasoning arguably can apply to Jones�s allegation of

misconduct at the guilt phase. However, the prosecutor specifically referred to

Jones with each statement she made about the various roles that the judge,

police and jury play in our law enforcement system. She did not place undue

pressure on the jury to find Jones guilty based on their duty as jurors in the

community, but rather implored them to enforce the law as to Jones�s conduct.

�Enforcing the law� would require the jury to apply the law as instructed to

them to the evidence presented at trial, which is precisely the jury�s role.

This case resembles Slaughter v. Commonwealth, 744 S.W.2d 407, 412

(Ky. 1987), where in closing argument a prosecutor stated, �He had done all he

could do, that the police had done all they could do, that the judge had been

fair and impartial, and . . . now it's going to come your time to deal with justice

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in this particular case.� This Court, citing past decisions, reasoned that a

prosecutor can ask the jury �not to �let the officer down,�� or call on the jury to

do its duty. Id. Accordingly, the prosecutor�s statements were deemed proper.

Id.

Similar to telling the jury in Slaughter to �deal with justice� in that case,

the prosecutor here told the jury to enforce the law as to Jones. This is simply

telling the jury to perform its duty or do its job. The prosecutor�s argument

was clearly about enforcing the law as it pertains to Jones, not sending a

message to the larger community about crime in general, a practice we have

condemned. The prosecutor�s conduct was not misconduct and thus cannot

possibly satisfy the standard for reversal on prosecutorial misconduct grounds

as established in Dickerson, 485 S.W.3d at 329.

IV. There was no prosecutorial misconduct that justifies a new trial.

Jones also argues that several instances of prosecutorial misconduct

occurring throughout his case warrant a new trial. First, he notes the

prosecutor proceeded to trial on six counts of criminal mischief, blaming Jones

for six troopers� ripped pants, but only called two troopers to testify about their

damaged clothing. Second, he argues that the prosecutor improperly tilted the

scales against him and attacked him by using his ex-wife�s medical emergency

(she was discovered by troopers that night in a nearby trailer in diabetic shock)

to highlight that he hid after the assault and that his behavior suggested

consciousness of guilt. Third, Jones reiterates, incorrectly as we have found,

that the prosecutor gave an improper closing argument because he urged the

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jury to �send a message.� Lastly, Jones again argues that the prosecutor

improperly commented on the alleged arson and glass pipe.

Apart from the third argument, these allegations of prosecutorial

misconduct are unpreserved. Jones states that his fourth argument regarding

the alleged arson and glass pipe is preserved by his objection to the admission

of that evidence as KRE 404(b) evidence, but we disagree. Jones only objected

to this testimony in a pre-trial hearing. He only objected once during the

Commonwealth�s closing, and it was during what he argues was the �send a

message� portion of the closing argument. We review the three unpreserved

allegations �for palpable error, reversing a conviction based on prosecutorial

misconduct during closing argument only if that misconduct was flagrant.�

Lewis v. Commonwealth, 475 S.W.3d 26, 37 (Ky. 2015).

As for the criminal mischief counts, the trial court granted a directed

verdict on each of those counts. Jones argues that it was misleading for the

prosecutor to tell the jury that Jones was indicted on six counts of criminal

mischief with no proof. However, Jones was indicted on those six charges, so

the prosecutor�s statement was true. Because it was true, this statement could

not have misled the jury, and certainly was not flagrant misconduct that

amounts to palpable error. And although it should be obvious, we note that

without more, the fact that charges are dismissed on a directed verdict motion

does not translate into prosecutorial misconduct.

After Burdine�s wife called the police to report the assault, Kentucky

State Police troopers responded to the scene and attempted to locate Jones.

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When no one answered the door, the troopers noticed a trailer parked on the

property. Upon approaching the trailer, they found an unresponsive female,

later revealed to be Jones�s ex-wife. During closing argument, the prosecutor

revealed that she was experiencing a diabetic emergency. The troopers called

EMS and once they arrived, the troopers left to continue searching for Jones.

Spurling testified that after the emergency vehicle arrived its lights were visible

from where they were sitting and that they watched the troopers and the

ambulance. Despite seeing the ambulance, Jones remained in his truck

parked in the middle of a briar patch. The prosecutor insinuated that Jones

was conscious of his guilt and thus continued his attempts to avoid detection

despite his ex-wife�s medical emergency.

Jones argues that the prosecutor tried to use his ex-wife's diabetic

emergency to prejudice the jury against him but his argument is not wellfounded. The prosecutor did not state or infer in any way that Jones was

responsible for the medical emergency. �Attorneys are allowed great latitude in

their closing arguments . . . . However, they may not argue facts that are not

in evidence or reasonably inferable from the evidence.� Garrett v.

Commonwealth, 48 S.W.3d 6, 16 (Ky. 2001) (citations omitted). The

prosecutor�s statements about the visible emergency vehicles and Jones�s

decision to remain in the briar patch despite the medical emergency were fully

supported by the record. This evidence supports a reasonable inference that

Jones was intent on avoiding detection by law enforcement, and the

prosecutor�s statements referencing the ex-wife's medical emergency were

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simply commentary on that properly admitted evidence, not prosecutorial

misconduct.

The third alleged instance of prosecutorial misconduct is based on what

Jones has characterized as a �send a message� argument in the guilt phase of

the trial. As discussed, the prosecutor�s closing argument which included

statements about the jury enforcing the law against Jones was proper. A

proper closing argument does not equate with prosecutorial misconduct.

Finally, we have determined that admission of the glass pipe testimony

was error but harmless. In her closing argument, the prosecutor referenced

Burdine�s testimony and mentioned that Burdine saw Jones smoking

something before he �turned from daylight to dark.� In reviewing allegations of

prosecutorial misconduct during closing argument, we must consider the

closing argument as a whole. Dickerson, 485 S.W.3d at 331. The prosecutor�s

closing argument lasted nearly forty minutes and this single isolated comment

regarding evidence that was admitted in the record, albeit erroneously, did not

constitute flagrant misconduct. No palpable error occurred.



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For the foregoing reasons, we affirm the judgment of the Marion Circuit

Court.