DIXON v. COMMONWEALTH (2025)

OPINION

Appellant, Trenton Lee Dixon (“Dixon”), seeks review of his conviction and sentence in the Fayette Circuit Court. After thorough review and careful consideration, we affirm the Trial Court's rulings on all four issues.

I. Factual and Procedural Background

Since 2008, Dixon had been in a relationship with Jhamica Harbut (“Harbut”), and they have two, minor children. Some 14 years later, the romance soured, and she sought government assistance, alleging abuse. On March 8, 2022, Harbut obtained an Emergency Protective Order (“EPO”) on behalf of herself and the children. Dixon was served with the EPO the following day and was then aware that he was to have no contact with Harbut or their children. The EPO hearing was scheduled for March 16, 2022. Approximately one week before the hearing, Dixon texted and telephoned Harbut. She saved the messages and reported them to law enforcement. Dixon was then charged with violating the EPO.

The day before the hearing, and still after entry of the EPO prohibiting contact, Harbut was driving her vehicle on Richmond Road in Lexington, Kentucky with the two children as passengers. She noticed Dixon in his vehicle in the lane next to her. Dixon exited his vehicle and got into the passenger seat of Harbut's vehicle, where he began to yell obscenities at her and claim that she was trying to send him to jail. When Dixon exited Harbut's vehicle, she was able to lock the doors. However, Dixon then stood on the running board beneath the passenger side door and recommenced yelling at her, this time through the open sunroof. The traffic light changed during the confrontation, and traffic was impacted by the incident. Harbut was eventually able to drive away and telephone the police. She allegedly suffered an injury to her wrist from the incident.

The EPO remained in effect until the hearing and entry of the subsequent Domestic Violence Order (“DVO”) on April 14, 2022. The DVO prohibited Dixon from contact with Harbut or the children for three years.

And yet, about one month later, Harbut was visiting a karaoke bar with friends in Lexington when Dixon approached her and became confrontational. The parties went outside where Dixon pushed Harbut over a concrete barrier, injuring her back.

In August of 2022, a Grand Jury indicted Dixon on numerous charges relating to incidents surrounding violations of both the EPO and DVO. Dixon retained private counsel to defend him. However, in the summer of 2023, Dixon terminated his private lawyer after approximately one year of service and requested a public defender, filing the necessary paperwork. The Trial Court found him to be indigent and appointed counsel.

The trial was initially scheduled to begin on February 12, 2024. But during a status hearing on February 1, 2024, defense counsel motioned for a continuance due to counsel's involvement in a murder trial in the week between the status hearing and Dixon's scheduled trial. Dixon addressed the Trial Court directly, stating that he was adamantly against a continuance. He strongly desired to proceed with the trial as scheduled. The Trial Court did not make a ruling at that time, reasoning that it would be prudent to determine for certain whether the other trial was going to proceed.

On February 7, 2024, defense counsel indicated to the Trial Court that the murder trial was underway, and he again requested a continuance of the February 12, 2024, trial date. Dixon again forcefully argued against a continuance; he wanted to proceed with the trial as scheduled. The Trial Court ultimately granted defense counsel's motion to continue, despite Dixon's disagreement. The trial was rescheduled for April 1, 2024, two months later. At no point did Dixon express any dissatisfaction with defense counsel when pushing to keep the February trial date. And Dixon himself had expressed the need for finality.

On March 29, 2024, just three days before the continued trial date, Dixon himself sought a continuance. He appeared with court-appointed counsel and stated that he had spoken with two private attorneys who had both agreed to take his case. He averred that he had sufficient funds to retain counsel on his own once again. The Trial Court addressed all relevant, legal factors weighing against the continuance and denied the motion. Dixon renewed this request again on the morning of trial. And the Trial Court denied it again.

Following the trial, the jury convicted Dixon of tampering with a witness; second-degree wanton endangerment;¹ five counts of violation of an EPO or DVO; and one count of fourth-degree assault.² The Trial Court sentenced Dixon to a total of five years’ imprisonment for the felony conviction of tampering with a witness. As the other offenses were misdemeanors, the Trial Court properly ordered those sentences to be served concurrently with the felony time. The Trial Court also imposed fines. This appeal followed.

II. Standard of Review

Dixon makes four arguments on appeal. His first two, preserved claims are that the Trial Court erred by: (1) denying a motion for a continuance to allow Dixon to proceed to trial with retained counsel, rather than the appointed public defender; and (2) denying his motion for a mistrial after Harbut allegedly referenced past abuse in her testimony. These claims are reviewed for an abuse of discretion. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).

Regarding his remaining two arguments, Dixon requests palpable error review under Kentucky Rule of Criminal Procedure (“RCr”) 10.26 because he did not preserve them on appeal. His third argument asserts that the prosecution erred when it informed potential jurors during voir dire that the Kentucky Rules of Evidence (“KRE”) prevented the Commonwealth from telling the jury more about the parties’ relationship. Fourth, Dixon claims that the Trial Court erred when it imposed fines for his misdemeanor offenses as he was represented by a public defender.

RCr 10.26 requires Dixon to show that the errors resulted in “manifest injustice.” Manifest injustice means there is a “probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). While both Dixon and the Commonwealth request palpable error review for the last two arguments, the final argument alleges an error in sentencing. Those claims necessitate a review de novo. Nonetheless, “since sentencing is jurisdictional it cannot be waived by failure to object.” Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985). “Thus, sentencing issues may be raised for the first time on appeal[,] and Appellant is proceeding properly before this Court.” Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). Fines are part of the punishment imposed by Courts, and they are thus part of the sentence in a criminal case.

III. Analysis

Dixon first argues that the Trial Court erred in denying his eve-of-trial motions for a continuance to obtain new counsel again after almost two years had elapsed since the alleged crimes. The Trial Court aptly pointed out that no private attorney was present with Dixon, and that no entry of appearance had been filed. The Trial Court then discussed on the record the factors that it must consider in order to grant a continuance. To wit,

[f]actors the trial court is to consider in exercising its discretion are: length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice. Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir. 1985).

Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). The Trial Court ultimately denied Dixon's motion to continue, finding good cause had not been shown, and it noted that the delay and inconvenience would be considerable. Dixon was already responsible in part for the length that the case had been pending because he had fired his first, private attorney, and because his appointed counsel then had a conflict with the trial date. Dixon's request was very last minute. And while he claimed that he had spoken to an attorney who was supposedly ready to step in and try the case, he did not produce any such attorney. Significantly, no other attorney was present, and no entry of appearance had been filed.

Dixon's request for a last-minute continuance to obtain private counsel, when he had adamantly opposed prior continuances for any other reasons and stated that he was ready to proceed with court-appointed counsel, appears contrived and made for reasons other than trial preparation. Dixon was seeking a third attorney to appear in this matter. And he did so only after using a public defender for a considerable period of time. Dixon has repeatedly failed to show any undue prejudice from the denial of a continuance for a private attorney – one that never materialized – and despite the fact that the case had been pending for nearly two years.

Moreover, Dixon's assertions about his appointed counsel did not rise to the level of necessitating a continuance. Dixon stated that appointed counsel had sent an email instead of calling him on the telephone on one occasion, which caused a problem in communication, and that counsel did not accept certain documentation Dixon wished to submit. These are imminently resolvable issues. And appointed counsel stated that he was prepared to move forward with the trial. Dixon did not provide the name(s) of the attorney(s) that he said had agreed to accept his case. And we still do not know them as he did not proffer them for appeal and after the elapse of considerable more time. We do know that no one else appeared on his behalf – not in person and not in writing. And we know that the ultimate sentence of five years was half of the time that Dixon had faced. Under these circumstances, we cannot conclude that the Trial Court abused its discretion when it refused to grant the continuance for Dixon, especially in light of the fact that the Trial Court had already just granted a continuance to Dixon's appointed counsel, albeit for a different reason (that he was actually defending another client in another trial). And Dixon still failed to use that continuance to retain private counsel – a failure he continues to this day.

We next turn to Dixon's argument that the Trial Court erred when it denied his motion for a mistrial. Prior to trial, Dixon filed a motion in limine to exclude testimony about the facts that resulted in entry of the protective orders and agreed to stipulate that a valid, protective order exists. Dixon argued that any testimony related to the reasons that the protective orders were entered would be unduly prejudicial pursuant to KRE 404(b). The Trial Court granted the motion.

At trial, Harbut testified regarding the various text messages and telephone calls that she had received from Dixon after entry of the protective order. She also testified about the incidents on Richmond Road and at the karaoke bar. On cross-examination, defense counsel attacked Harbut's ability to recall certain details and facts. On redirect, the Commonwealth made the following inquiry, in relevant part:

COMMONWEALTH: When you say [you] ‘zoned out,’ you don't mean you were bored, do you?

HARBUT: No.

COMMONWEALTH: You mean you were terrified?

HARBUT: That's what my brain does. Anytime I've been abused, I have to try to block it out.

Dixon immediately objected and motioned for a mistrial, claiming that Harbut had referenced past abuse in violation of KRE 404(b). The Trial Court denied his motion. Importantly, Dixon did not ask for an admonition to the jury.

Dixon now argues that Harbut's statement was highly prejudicial and inflammatory as propensity evidence. We disagree. KRE 404 provides, in relevant part,

(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.

When Harbut's statement is taken in context with the rest of her testimony, Dixon's argument is unpersuasive. Harbut was describing physical abuse that had occurred during two specific and separate instances – at the stoplight on Richmond Road and at the karaoke bar. This testimony was relevant to charges related to violation of the EPO/DVO and to assault. To claim that Harbut must have been referencing other abuse in the relationship through her statement is simply unsupported.

However, even if we assume that Harbut meant to reference abuse that had occurred prior to the entry of the protective orders, her statement was vague and did not refer to a specific instance of abuse. It therefore does not fall under KRE 404(b). See Peyton v. Commonwealth, 253 S.W.3d 504, 517 (Ky. 2008). Accordingly, the Trial Court did not abuse its discretion when it denied Dixon's motion for a mistrial.

For his third argument, Dixon claims that palpable error occurred when the prosecution told prospective jurors during voir dire that Dixon and Harbut had been in a relationship beginning in 2008 and had two children together. The prosecutor then stated,

[s]o, understandably, there are some things that you may want to know about their relationship, and you'll learn a little bit about their history, but because of the court rules that we must follow, we can't delve into many aspects of their relationship. Is anyone just slightly uncomfortable with the thought of that – that you're not going to be able to hear every single detail of the relationship from beginning to end – the highs the lows? You're just going to hear the facts of the case. Does anyone feel a little bit uncomfortable about that? And that's okay if you do.

Dixon argues that this statement implied that the Commonwealth had more incriminating evidence that it was not permitted to show the jury.

Dixon cites to Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982), in support of his argument that a prosecutor's reference to excluded evidence in order to incriminate is impermissible:

Following appellant's arrest, his interrogation was taped in part. In a subsequent evidentiary hearing, the trial court excluded parts of the tape. The admissible part of the tape was played to the jury as part of the prosecution's case. In his closing argument, the prosecutor commented,

“He (the appellant), denies it today on the stand but in the recorded statement to the police on Monday, he told them that Blair had given him the gun and he hid it in his waistband. I know you didn't get to hear all the tape recorded statement. I wish you could have.”

Later in his argument he made an additional reference to the tape “․ you heard that part of the tape. Wish you could have heard it all.”

The other contested part of the prosecutor's closing argument deals with his statement of his personal opinion of the defense witness, James Lofton:

“James Lofton who is one of the most dangerous and vicious killers that it has ever been my experience to see in a courtroom and says believe that man,” (in reference to appellant), James Lofton, birds of a feather flocking together.” (TE 964)[.]

Id. at 437 (emphasis omitted). The Kentucky Supreme Court ruled that “[t]he effect of these comments was to negate and circumvent the ruling of the trial court and to try the appellant by innuendo.” Id. at 438.

The remarks by the prosecutor in Moore are distinguishable from the case at bar. Here, the Commonwealth's statement very generically and broadly referenced that the jury would not be permitted to hear about every aspect of the long-term relationship between Dixon and Harbut. Obviously, there would have been both good and bad aspects of the relationship over the years that would not be in evidence, and it would have been just as evident that many intimate and mundane aspects of their relationship would be entirely irrelevant.

Dixon also cites to Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993), to buttress his argument, but again, Mack does not aid him. In that case, the prosecutor's remarks were far worse and directly implied that incriminating evidence had been excluded:

In closing argument during the guilt/innocence phase of trial, the prosecutor remarked:

[W]e've only heard the tip of the iceberg. You didn't hear the full story in a trial in open court under oath of all these witnesses subject to the rules of evidence.

The defense objected, but the prosecutor persisted:

You've heard that portion that comes in through legal proceedings, and that's all. What happened in that house all the rest of the nights? Do you think his needs stopped? Do you think he wasn't abusing somebody?

A second defense objection was overruled, and a motion for mistrial was denied.

Id. at 276. The Kentucky Supreme Court ruled that the effect of the prosecutor's statements was to deprive the defendant of a fair trial because “[a] defendant cannot confront phantom witnesses, or cross-examine real witnesses on a ‘full story’ consisting of mere suggestion.” Id. at 277.

Again, the case at bar is distinguishable. The Commonwealth in no way suggested that there was myriad, incriminating evidence against Dixon that it could not introduce. Rather, it quite properly noted that the evidence would be contained to the relevant facts of the case. Thus, there is no palpable error here, and no reason to reverse the case on this ground.

For his fourth and final argument, Dixon now states that he is indigent and thus immune from the imposition of fines by the Trial Court. We note that Dixon repeatedly refers to “court costs” in his brief. However, the Trial Court did not impose any court costs. Rather, the Trial Court imposed fines ³ for the misdemeanor offenses pursuant to Kentucky Revised Statute (“KRS”) 534.040(4).

At the outset of addressing this argument, it is not lost on this Court that Dixon tries to have it both ways on appeal. On the one hand, he claims that he should have been granted a continuance because he was in the process of hiring private counsel that he could afford on his own. On the other hand – simultaneously and incongruously – he argues that the mere fact of having a public defender entitles him to be absolved of paying any fines because at one time during the years of litigation, he qualified as an indigent person.

To secure the constitutional right to counsel, Courts properly and regularly appoint attorneys at taxpayer expense to those who cannot afford counsel. Pursuant to KRS 31.120(1)(b), Courts must determine for a defendant “with respect to each step in the proceedings, whether he or she is a needy person” for the appointment of counsel. This crucial appointment is as axiomatic as automatic. And here, Dixon was appropriately afforded public counsel when he cited need.

In Kentucky, where legislatures have imposed statutory fines for defendants who have been convicted of crimes, Courts have nonetheless generally construed exceptions from those fines for defendants who are indigent. Fultz v. Commonwealth, 554 S.W.3d 385 (Ky. App. 2018); see also Commonwealth v. Moore, 545 S.W.3d 848 (Ky. 2018).

To qualify for the exemption from the mandatory statutory fine, a Trial Court must find a defendant “indigent.” Peterson v. Commonwealth, 708 S.W.3d 435 (Ky. App. 2025). Peterson involved a defendant who claimed indigency upon appeal and sought to avoid the payment of Court costs. That defendant equated representation by a public defender to waiver of costs. This Court noted that the mere fact of the presence of a public defender did not equate to an exemption from payment:

[T]he record does not indicate that the trial court ever adjudged Peterson a “poor person,” explicitly or implicitly. The trial court's determination that Peterson was a “needy person” entitled to representation by a public defender is not equivalent to finding Peterson is a poor person exempt from paying court costs.

Peterson, 708 S.W.3d at 446. Because Peterson's status as indigent was never determined at trial, the Court of Appeals cannot then conclude that a sentencing error has occurred. Id.

Here, the Trial Court did not initially adjudge Dixon to be needy, and Dixon retained his own private counsel. Dixon then fired said counsel and filled out a standard form requesting appointment of taxpayer-financed counsel. The Trial Court accepted the form and provided Dixon a public defender. But Dixon then denied his need and indigence and sought private counsel again. The Trial Court denied any further continuance of the trial. But in doing so, it neither found Dixon needy nor not needy. Furthermore, while the Trial Court later signed Dixon's pro forma request for continued representation by a public defender on appeal, Dixon continues to maintain on appeal that he could have secured private counsel with his own funds and that he will do so if we reverse his conviction. Thus, Dixon's status as “needy” has been fluid and shifting throughout the litigation.

And Dixon's neediness, or lack thereof, regarding the appointment of counsel is not necessarily determinative of whether Dixon is to be held responsible for paying the $500.00 fine that the Trial Court imposed at sentencing. That is a determination to be made as to whether Dixon qualified as a poor person. Thus, there remains an issue of fact for the Trial Court to determine as to Dixon's status. Is he a poor person entitled to be free from the imposition of statutory fines at sentencing? His argument that the fine should be waived should properly have been directed to the Trial Court. Once the Trial Court has made the factual determination of Dixon's status as poor and cited at least minimal findings – and it has not yet done or been asked to do either – Dixon could then more appropriately seek review of that decision before this Court.

But at this stage, and without a decision below, his argument is little more than theoretical. Just because one is needy in that he cannot afford tens of thousands of dollars at once to retain private counsel for an entire trial does not necessarily and automatically equate to qualifying one as a poor person unable to pay a $500.00 fine over the course of many months or years. And we do not even know if this is Dixon's argument because he states the opposite on appeal: that he can afford the large cost of paying a private attorney to defend him at trial and should be allowed to do so. This issue is central to Dixon's appeal. But we do not know the extent of Dixon's financial circumstances. That is a Trial Court's job of inquiry. Dixon avoided making this argument to the Trial Court, perhaps intentionally, and he did so at his peril. Just as in Peterson, 708 S.W.3d at 446, Dixon's status on the issue of fines was never determined at trial. And, as there, the Court of Appeals cannot then conclude that a sentencing error has occurred. And that is part of what he calls on us to do here. Dixon's failures are more pronounced than Peterson's because Dixon did not even preserve the alleged error for appeal. He did not lodge an objection to the fine when imposed; and he did not thereafter seek any relief from the Trial Court. For all of these substantial reasons, we decline to disturb the Trial Court's ruling. The judgment of the Fayette Circuit Court is affirmed.

FOOTNOTES

1.   Dixon was charged with first-degree wanton endangerment, but the jury found him guilty of the lesser-included offense of second-degree wanton endangerment.

2.   The jury acquitted Dixon on a second count of fourth-degree assault.

3.   We note that the record reflects some confusion about the amount of the fines imposed. The record contains a conversation with the Trial Court about $3500.00 in fines:TRIAL COURT: If I'm not mistaken, I remember the jury made some specific recommendations for the imposition of fines, did they not?UNKNOWN SPEAKER: They did. I believe $3500.00 in fines for the misdemeanor convictions, and they also recommended anger management in connection to the felony conviction. Classes.TRIAL COURT: Right. Okay. I'm going to impose those particular recommendations, too, and include them in the court order.The final judgment and sentencing order of the Trial Court indicates as follows:[Dixon] is hereby sentenced, as recommended by the jury, to an indeterminate term of Count 1: five (5) years; Count 2: six (6) months with a $500 fine; Count 3: twelve (12) months with a $500 fine; Count 4: three (3) months with a $500 fine; Count 5: three (3) months with a $500 fine; Count 6: three (3) months with a $500 fine, Count 8: twelve (12) months with a $500 fine; and Count 9: twelve (12) months with a $500 fine, with all misdemeanors to run CONCURRENTLY to each other, and with Count 1 for a total of five (5) years to be served at such facility designated by the Department of Corrections. The Defendant is further fined in the sum of $500 (which the Court interprets the law to be the cap) and directed to complete Anger Management classes or the DOC equivalent. The Jury having found him Not Guilty of Count 7, that Count is DISMISSED.(Emphasis in original.)Dixon acknowledges that the Trial Court ordered him to pay $500.00 per misdemeanor, but he interprets the order as a whole to mean that the Trial Court reduced the amount to $500.00, which it believed to be the cap. The Commonwealth does not dispute this interpretation.

ECKERLE, JUDGE:

ALL CONCUR.