TRENT v. COMMONWEALTH (2026)

OPINION

Brian Trent appeals from the trial court's final judgment and conviction following the entry of his conditional guilty plea to two counts of first-degree wanton endangerment and one count of first-degree fleeing or evading police. After reviewing the facts and the law, we affirm.

I. Background

The underlying facts of this case are largely undisputed. On June 24, 2022, Gladys Trent filed a petition seeking an emergency protective order (EPO) against her husband, the appellant. In her petition, Gladys made several allegations that Trent had threatened and abused her, including instances in which Trent had pointed a gun in her face. In one alleged incident, Trent discharged a firearm near Gladys's head. Of particular relevance to this appeal, Gladys made the following statement in her EPO petition: “He would tell me if the law comes he would kill me and hisself [sic] or shoot at the law.” A family court judge granted the EPO.

That same day, Major Mike Wolfe of the Breathitt County Sheriff's Department and another officer attempted to locate Trent to serve the summons for the EPO. When they saw Trent drive past them in his truck, they pulled him over and explained that they were serving a summons. As the officers spoke to Trent, they noticed that he had rifles in the front passenger seat, and they asked him to step out of the vehicle. When Major Wolfe opened the vehicle's door, Trent pulled the door shut, put his truck in gear, and began driving away. Major Wolfe held on to the vehicle as it started to drive off. He attempted to reach in and knock the truck out of gear in order to stop it, but he did not succeed and was forced to let go. As Trent drove away, the trailer attached to the truck ran over Major Wolfe's foot.

The officers pursued Trent a short distance before Trent eventually lost control of his vehicle and slid into some bushes and trees along the road. As the officers approached the truck, Major Wolfe saw Trent point a rifle outside the driver's side window toward the officers. Major Wolfe responded by shooting Trent, who suffered non-fatal injuries. Trent was taken to the hospital, and subsequent toxicology reports indicated that he was under the influence of methamphetamine at the time.

As a result of this incident, the Breathitt County grand jury indicted Trent on two counts of attempted murder,¹ one count of second-degree assault,² and one count of first-degree fleeing or evading police (motor vehicle).³ In a subsequent indictment, Trent was also charged with one count of first-degree possession of a controlled substance (methamphetamine),⁴ possession of drug paraphernalia,⁵ and possession of marijuana.⁶

During the pretrial phase, the Commonwealth filed a notice pursuant to KRE ⁷ 404(c) indicating that it intended to introduce evidence of Trent's prior acts of wrongdoing under KRE 404(b). In relevant part, the Commonwealth wished to use “[t]he events surrounding Gladys Trent seeking and obtaining an [EPO] against Defendant in Breathitt County on June 24, 2022[.]” (Record (R.) at 33.) The Commonwealth asserted that this evidence was relevant “to show knowledge and absence of mistake or accident,” and that “the EPO events are so inextricably intertwined with the other evidence essential to the case that separation of the two cannot be accomplished without serious adverse effect on the Commonwealth's Case in Chief.” (R. at 33.)

The trial court initially ruled that the Commonwealth could present evidence that the officers were present to serve a summons for an EPO, but they would not be permitted to present any specific allegations set forth in the EPO petition. (R. at 46.) The Commonwealth then moved the trial court to reconsider its ruling, asking the court to allow one sentence from the petition as evidence: “He would tell me if the law comes he would kill me and hisself [sic] or shoot at the law.” The trial court granted the Commonwealth's motion, stating that this sentence was admissible under KRE 404(b) “as showing motive, opportunity, and/or intent.” (R. at 111.)

Trent subsequently moved the trial court to exclude all evidence from the EPO petition, including the admitted sentence, because Trent wished to invoke marital privilege; i.e., the spousal testimony privilege found in KRE 504(a) and the marital communications privilege found in KRE 504(b). (R. at 125.) The trial court ultimately ruled that the evidence was admissible because “marital harmony was no longer in existence,” precluding application of the marital privilege pursuant to Mullins v. Commonwealth, 956 S.W.2d 210 (Ky. 1997). (R. at 238.) The trial court also found that the privilege would not apply due to the exception found in KRE 504(c)(2)(D), which precludes application of the privilege when “one (1) spouse is charged with wrongful conduct against the person or property of ․ [a] third person if the wrongful conduct is committed in the course of wrongful conduct against any of the individuals previously named in this sentence”; i.e., the other spouse, a child of either spouse, or an individual residing in the household of either spouse. KRE 504(c)(2)(A)-(C). In essence, the trial court found the privilege inapplicable because Trent's wrongful conduct against the third-party police officers was the direct result of his wrongful conduct against Gladys which resulted in the issuance of the EPO.

Following the trial court's orders on the pretrial motions, Trent and the Commonwealth negotiated a conditional guilty plea in which Trent agreed to plead guilty to two counts of first-degree wanton endangerment ⁸ and one count of first-degree fleeing or evading. As part of the negotiated plea, Trent would reserve the right to appeal the trial court's rulings on his pretrial motions. For its part, the Commonwealth agreed to dismiss the other counts of the indictment, including the two charges of attempted murder. Trent also agreed to serve three consecutive five-year terms, one for each count, for a total sentence of fifteen years in prison. The trial court accepted the guilty plea in open court and thereafter sentenced Trent accordingly. This appeal followed.

II. Analysis

Trent presents two issues on appeal stemming from the trial court's decision to allow Gladys's EPO statement into evidence. First, he argues the trial court abused its discretion in allowing the Commonwealth to present the statement as an exception to the prohibition against other-act evidence under KRE 404(b). Second, Trent argues the trial court abused its discretion when it allowed the EPO statement into evidence under an exception to the marital privilege in KRE 504. We consider each issue in turn.

In his first argument, Trent contends that the trial court abused its discretion when it ruled that the Commonwealth could introduce the EPO statement when it should have been excluded as “evidence of other crimes, wrongs, or acts” under KRE 404(b). Trent asserts that the trial court erred when it agreed with the Commonwealth that the EPO statement fell under one of the exceptions to KRE 404(b) exclusion: “[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or ․ [i]f 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.” KRE 404(b)(1)-(2). “The standard of review for a trial court's evidentiary ruling is abuse of discretion.” Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000)). “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).

An inquiry into whether evidence of other crimes or acts is admissible must be analyzed through the framework of “relevance, probativeness, and prejudice[.]” Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). Here, the trial court determined that, while most of the specific allegations in the EPO were “irrelevant and more prejudicial than probative,” the sentence in the EPO requested by the Commonwealth was admissible because it showed “motive, opportunity and/or intent.” (R. at 111.) The trial court reasoned that “[o]ne of the main issues ․ is whether Mr. Trent pointed a firearm at law enforcement the day in question or whether he was tossing the firearm out of the vehicle after a police chase.” (R. at 111.)

We agree with the trial court's reasoning on this issue. There is no disguising the intrinsic intent in stating, “if the law comes he would kill me and hisself [sic] or shoot at the law.” In addition, there is a clear relevance between the EPO sentence, in which Trent allegedly threatened to use a firearm on law enforcement, and this incident, in which Trent is alleged to have pointed a firearm out the window and aimed it in the direction of law enforcement officers.

With regard to the probativeness factor described in Bell, “[i]t has long been a rule in this jurisdiction that threats against the victim of a crime are probative of the defendant's motive and intent to commit the crime[.]” Driver v. Commonwealth, 361 S.W.3d 877, 884 (Ky. 2012) (footnote and citations omitted). This general rule of admissibility regarding threats is somewhat limited because “prior acts are not admissible when the conduct occurred too remote in time to fairly represent any reasonable application to the present crimes.” Id. That said, despite his argument favoring application of this limitation, Trent admits that the alleged statement to Gladys occurred “at some unknown time in the month before his encounter with police.” (Appellant's Brief at 19.) In our view, the month prior to the incident is still recent enough for the alleged threat to have retained significant probative value; see, e.g., Sloss v. Commonwealth, 709 S.W.3d 102, 130 (Ky. 2024) (holding that five to six months was not too remote in time to prevent evidence of domestic abuse against a victim prior to her murder).

The last factor in the Bell framework is that of prejudice. Trent argues that the EPO statement is unduly prejudicial because it included threats to kill his wife and himself or, alternatively, that the negative inference from a domestic violence allegation in an EPO would cause a jury to convict him based on emotion rather than reason, citing Wilson v. Commonwealth, 438 S.W.3d 345, 350 (Ky. 2014). However, an examination of Wilson shows that the Supreme Court reversed because the Commonwealth submitted substantial narrative evidence going “far beyond simply impeaching [the witness's] credibility ․ becoming instead an expose of Wilson's extensive domestic misconduct.” Id. at 351. Here, however, the trial court did not permit an extensive narrative of Trent's conduct as described in the EPO petition. Instead, the trial court wisely allowed only a single sentence focused exclusively on Trent's relevant intent, something which would have minimized the prejudice Trent might have faced at trial from the disclosure. Under these circumstances, the trial court did not abuse discretion when it elected to admit the EPO statement as an exception to KRE 404(b) based on motive, intent, lack of mistake, or accident.

In his second assertion of error, Trent argues the trial court abused its discretion when it permitted the Commonwealth to introduce the EPO statement under an exception to the marital privileges found in KRE 504. As a reviewing court, we examine the language of KRE 504 and the relevant case law interpreting it de novo. Coursey v. Commonwealth, 593 S.W.3d 64, 66 (Ky. App. 2019). We must then determine whether the trial court abused discretion when it denied Trent's motion to apply the privilege. Id. As previously stated, an abuse of discretion occurs when a trial court's decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” English, 993 S.W.2d at 945.

What we refer to collectively as “marital privilege” under KRE 504 actually contains two separate privileges. KRE 504 describes the two privileges in the following way:

(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.

(b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. The privilege may be asserted only by the individual holding the privilege or by the holder's guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person.

Both of these privileges are subject to certain exceptions described in KRE 504(c) and (d):

(c) Exceptions. There is no privilege under this rule:

(1) In any criminal proceeding in which the court determines that the spouses conspired or acted jointly in the commission of the crime charged;

(2) In any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of:

(A) The other;

(B) A minor child of either;

(C) An individual residing in the household of either; or

(D) A third person if the wrongful conduct is committed in the course of wrongful conduct against any of the individuals previously named in this sentence; or

(3) In any proceeding in which the spouses are adverse parties.

(d) Minor child. The court may refuse to allow the privilege in any proceeding if the interests of a minor child of either spouse may be adversely affected.

Finally, any examination of KRE 504 should reflect that the Kentucky Supreme Court has taken a negative stance on marital privilege, describing it as “disfavor[ed]” for the following reasons:

The exceptions provided in KRE 504(c)(2) reflect the fact that the marital privilege is considered by many to be in disfavor as a result of abuses which prevent ascertaining the truth․ The courts have approached the privilege by narrowly and strictly construing it because it has the potential for shielding the truth from the court system. Many courts have determined that when the reason supporting the privilege, marital harmony, no longer exists, then the privilege should not apply to hide the truth from the trier of fact.

Gonzalez de Alba v. Commonwealth, 202 S.W.3d 592, 596 (Ky. 2006) (quoting Mullins, 956 S.W.2d at 212).

The trial court denied Trent's motion to disallow statements from the EPO, citing two separate reasons in its order. First, the trial court found that “marital harmony was no longer in existence.” (R. at 238.) Second, the trial court found that the exception to the privilege based on wrongful conduct against a third party found in KRE 504(c)(2)(D) applied to this case. The trial court reasoned that, “but for the seeking of law enforcement assistance by Ms. Trent and a Judge issuing the EPO based on the alleged wrongful conduct of Mr. Trent towards Ms. Trent, the deputies would not have had any reason to approach Mr. Trent.” Regarding the first finding, Trent admits that “Gladys seeking a protective order suggests disharmony.” (Appellant's Brief at 10.) With regard to the second finding, Trent contends that the trial court erred because he was not actually “in the course of committing wrongful conduct against Gladys when he interacted with police.” (Appellant's Brief at 10.) He points out that he was alone when police pulled him over to serve the summons, and neither Gladys nor anyone else was with him during the incident giving rise to the indictment.

We agree with Trent that the trial court erred when it used but-for causation in its reasoning to equate KRE 504(c)(2)(D)’s “in the course of conduct” language. A plain reading of the language of the exception requires that Trent committed the wrongful conduct in the indictment (e.g., running over Major Wolfe's foot, fleeing or evading police, and pointing his rifle at the officers) while he was “in the course of wrongful conduct” against Gladys. Even if we accept as true that Trent had committed the abuses detailed in the EPO petition, he was not committing them during this encounter with law enforcement. Trent correctly points out that Gladys was not present during the encounter at all.

The Commonwealth argues that the KRE 504(c)(2)(D) exception should apply, noting that Trent engaged in “a pattern of ongoing wrongful conduct” against Gladys. (Appellee's Brief at 15.) However, the Commonwealth cites no authority which would describe a “pattern” of wrongful conduct as being sufficient to invoke the exception. Instead, the Commonwealth cites Gonzalez de Alba and two unpublished cases ⁹ to support application of the exception. However, in each of these cases, the beleaguered spouse is in the process of suffering some current wrong while in spatial or temporal proximity to the wrongful conduct against the third party.

In Gonzalez de Alba, the defendant assaulted his wife, then he shot and killed his wife's son after the son tried to defend his mother; all three were present in the home. 202 S.W.3d at 593-94. In Wilbanks v. Commonwealth,¹⁰ the defendant killed a third party who was giving his wife a ride to the grocery store. The defendant approached his wife in the car, in violation of a no-contact order. When the third-party driver attempted to defuse the situation, the defendant shot and killed him. In Gerald v. Commonwealth,¹¹ the defendant and his wife were engaged in a domestic dispute that escalated to a physical altercation, and the wife called law enforcement multiple times. The defendant threatened to shoot police during one of these calls. When law enforcement arrived, the defendant shot at the officers.

The Commonwealth admits that Gerald is the closest fact pattern to the current case, yet even in Gerald the wife was (1) present during the altercation with police, and (2) subjected to a current wrongful act. Neither of these is true in this case. It is our view that the trial court abused its discretion when it stretched a chain of but-for causation to provide the equivalent of wrongful conduct against a spouse for the purpose of finding an exception in KRE 504(c)(2)(D).

However, despite our disagreement with the trial court's application of the specific exception in KRE 504(c)(2)(D), there is still the matter of the trial court's finding that “marital harmony was no longer in existence.” (R. at 238.) In Mullins, 956 S.W.2d 210, the Kentucky Supreme Court held that “[t]he privilege exists only to protect marital harmony” before noting that “when the reason supporting the privilege, marital harmony, no longer exists, then the privilege should not apply to hide the truth from the trier of fact.” Id. at 212.

That said, generally courts should not delve into an examination of marital health to determine whether the marital privilege should apply:

A divorce shows courts and the world at large that a marriage is over and no longer harmonious. If a marriage has a rough patch and is temporarily not harmonious, should the spousal privilege be negated during that period? What if the married couple reconcile before a divorce? Should a court be forced to examine the happiness of a marriage before allowing a spouse to invoke the spousal privilege? At this time, we will not negate the spousal privilege while the parties are still married.

Commonwealth v. Daugherty, 736 S.W.3d 442, 445 (Ky. App. 2026). We agree that courts are generally ill-suited to make factual findings regarding the harmony, or lack thereof, in a marriage at any given time, especially when neither spouse has taken formal action to end the marriage. However, our case law suggests that certain communications may nevertheless be admissible depending on the circumstances in which they were made and whether there have been prior, lawful disclosures of those communications by either spouse.

For example, in Dawson v. Commonwealth, 867 S.W.2d 493 (Ky. App. 1993), a wife filed a domestic violence report against her husband following an altercation, and the husband was then prosecuted for fourth-degree assault. However, the wife subsequently refused to testify against her husband. The Court considered the applicability of the marital privileges, then codified in KRS 421.210(1),¹² and reasoned that “[i]n cases involving violence between spouses, the privilege acts to protect a marriage in which there is little harmony.” Dawson, 867 S.W.2d at 495. The Court then applied KRS 209.060 to rule that the wife's statements to the police were not protected by privilege. That statute, which remains extant, reads as follows: “Neither the psychiatrist-patient privilege nor the husband-wife privilege shall be a ground for excluding evidence regarding the abuse, neglect, or exploitation of an adult or the cause thereof in any judicial proceeding resulting from a report pursuant to this chapter.” Id. In its view, the Dawson court held that KRS 209.060 “reflects the policy that in cases of abuse the privilege may not be used to shield an abuser.” 867 S.W.2d at 495.

In Foley v. Commonwealth,¹³ a much more recent unpublished case, the Kentucky Supreme Court held that a trial court erred when it found two threats by a defendant against his wife were not privileged:

The following portions of Marjorie's testimony were determined to be outside the scope of the marital privilege: (1) Foley's statements to Marjorie that she better not have anything to do with telling his parole officer of any parole violations; (2) that before leaving to commit the murders, Foley hit Marjorie with a gun and warned her she better have not had anything to do with calling his parole officer; and (3) Foley's statement to Marjorie, shortly before he left to commit the murders, to call his parents if he was not home by sunrise because he would either be in jail or in the morgue.

The trial court found the first two statements were not privileged because they were deemed threats against Marjorie and that those threats could be the subject of a domestic violence petition, and, accordingly, could be part of a public record in a circuit clerk's office. Under the exceptions to the spousal privilege detailed in KRE 504(c), there is no privilege where the spouse engages in wrongful conduct against the person or property of the other spouse, in any proceeding. At the time of trial, Marjorie had not filed a domestic violence petition against Foley—and to our knowledge one has never been filed. These two statements were never part of a public record, and we must agree with Foley that they are subject to the spousal privilege.

Foley, 2017 WL 635573, at *9 (emphasis in original) (footnote omitted). The Supreme Court focused on the lack of a domestic violence petition to reflect its view that the marital privilege existed, paying special attention to whether there was a “proceeding” for the purpose of KRE 504(c)(2)(A): “There is no privilege under this rule ․ [i]n any proceeding in which one (1) spouse is charged with wrongful conduct against the person or property of ․ [t]he other.”

In viewing Dawson through the helpful lens of Foley, we conclude that the marital privilege does not extend to the contents of an EPO petition alleging spousal abuse once those allegations have been voluntarily placed into public records. The privilege exists to foster marital harmony by protecting confidential communications between spouses. Dawson makes clear, however, that this policy has no application where one spouse seeks protection from abuse inflicted by the other. Indeed, Dawson recognized that “[i]n cases of abuse the privilege may not be used to shield an abuser.” Dawson, 867 S.W.2d at 495. Once a spouse elects to seek judicial protection by filing an EPO petition, the allegations contained in that petition cease to function as confidential marital communications and instead become representations made to invoke the authority of the court. As Foley teaches, such communications voluntarily disclosed in a public filing lose the confidentiality necessary to invoke privilege. Accordingly, the marital privilege cannot be employed to prevent admission of the contents of an EPO petition that has been filed with the court.

To conclude otherwise would expand the marital privilege beyond its intended purpose by allowing it to operate not as a shield for confidential marital communications, but as a sword to suppress evidence of domestic abuse that the alleged victim has already chosen to disclose publicly in seeking judicial intervention. Such a result would undermine both the truth-seeking function of the courts and the public policy recognized in Dawson that the privilege cannot be invoked to conceal spousal abuse. As our Supreme Court has observed, “[a]t its very best, the rule that one party to a marriage cannot be compelled to testify against the other ․ is one of the most ill-founded precepts to be found in the common law. It is enough that it continues to exist at all. When it is encountered it is better to be trimmed than enlarged.” Wells v. Commonwealth, 562 S.W.2d 622, 624 (Ky. 1978). Consistent with that admonition, we decline to enlarge the privilege to encompass allegations of abuse that have already been voluntarily placed in the public domain through the filing of an EPO petition.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

FOOTNOTES

1.   Kentucky Revised Statute (KRS) 507.020 and KRS 506.010(4)(b), a Class B felony.

2.   KRS 508.020, a Class C felony.

3.   KRS 520.095(1)(a), a Class D felony at the time of this incident. The General Assembly has recently amended this statute, elevating the offense to a Class C felony. 2024 Ky. Acts ch. 174, § 47 (effective Jul. 15, 2024).

4.   KRS 218A.1415(1)(c), a Class D felony punishable by a maximum term of three years in prison.

5.   KRS 218A.500, a Class A misdemeanor.

6.   KRS 218A.1422, a Class B misdemeanor punishable by a maximum term of forty-five days in jail.

7.   Kentucky Rule of Evidence.

8.   KRS 508.060, a Class D felony.

9.   In the discussion of the unpublished cases which follows, we are mindful of Kentucky Rule of Appellate Procedure (RAP) 41, which disfavors citation to unpublished opinions. These cases are only referenced here because the Commonwealth relies upon them in its brief and there is a notable absence of published authority to adequately address the points argued on appeal.

10.   Wilbanks v. Commonwealth, No. 2021-SC-0041-MR, 2022 WL 243779 (Ky. Jan. 20, 2022) (unpublished).

11.   Gerald v. Commonwealth, No. 2005-CA-002544-MR, 2007 WL 121964 (Ky. App. Jan. 19, 2007) (unpublished).

12.   KRS 421.210 was repealed by the General Assembly when the Kentucky Rules of Evidence were implemented. Ky. Acts ch. 324, § 30 (eff. Jul. 1, 1992).

13.   Foley v. Commonwealth, No. 2014-SC-000743-MR, 2017 WL 635573 (Ky. Feb. 16, 2017). As mentioned previously, unpublished cases are not binding authority. We may, however, consider them as persuasive in the lack of any published authority directly on point. RAP 41.

JONES, A., JUDGE:

ALL CONCUR.