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Court of Appeals of Kentucky.


NO. 2011–CA–000240–MR

Decided: March 30, 2012

BEFORE:  DIXON, KELLER AND NICKELL, JUDGES. BRIEFS FOR APPELLANT:  Shannon Dupree Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Frankfort, Kentucky



Edward Hinkle appeals from the judgment of the Kenton Circuit Court entered following a jury trial convicting him of assault in the second degree Double and being a persistent felony offender in the first degree (PFO I) Double and sentencing him to thirteen years' imprisonment.   We affirm.

In the early morning hours of December 5, 2009, officers from the Erlanger Police Department were dispatched to a home on Sunset Avenue following a 911 call for assistance.   The home was a dormitory-style residence with each tenant having his own bedroom, but sharing all other living areas.   Upon their arrival, the officers found Mark Reed on the floor of his upstairs bedroom bleeding from a large gash on his head.   He appeared lifeless and was not speaking.   Reed regained consciousness and informed the officers and the paramedics tending to him that he remembered little of what had occurred.   He recalled being asleep, hearing a loud knocking on his door, seeing Hinkle standing in the doorway, and waking up in the ambulance.   He did not recall being struck.   In addition to several sutures, Reed received six to eight staples in his head to close the wound.   Reed said he and Hinkle had each lived in the home for approximately a month and had never had an argument.   He claimed to have been pummeled for no apparent reason.

Robert “Bobby” Ridenour lived in the downstairs bedroom of the Sunset Avenue residence.   He stated he heard Hinkle and his girlfriend enter the house at 6:00 a.m. and go upstairs.   He heard the pair arguing loudly before hearing an argument between Hinkle and Reed. Ridenour recounted hearing “big noises” that sounded like the front of the house was being ripped off.   He screamed up the stairs for Hinkle and Reed to “knock it off,” to which Hinkle replied that Ridenour should mind his own business.   Ridenour returned to his room and called 911.

Hinkle's girlfriend, Cassandra Bonnett, painted a somewhat different picture of the events of the morning.   She stated she and Hinkle had arrived at the house early in the morning and went directly to Hinkle's bedroom and locked the door.   Shortly thereafter, Reed began banging on the door while yelling and cursing at Hinkle to come out and fight.   Fearing Reed was going to break down the door, Hinkle grabbed a police-style baton, told Bonnett to lock the door behind him, and went into the hallway to fight Reed. Bonnett heard the sounds of a loud struggle and fight.   At the end of the altercation, Hinkle returned to the room to call 911 for assistance.

Hinkle's description to the responding officers of the events of the evening closely matched Bonnett's but differed significantly from Reed's.   He claimed Reed was the initial aggressor.   He stated that when he went into the hallway, he told Reed to go back to his room but Reed “chest-bumped” him and started the fight.   After he knocked Reed to the ground he told Ridenour to contact the police and had his girlfriend sit with Reed until an ambulance arrived.   He initially told the officers he had used only his fists in the altercation and claimed he had no knowledge of any baton.

The baton was located under the staircase in the basement.   Damage to the door frame of Reed's bedroom matched the shape of the baton.   When confronted with this evidence, Hinkle became irate and began cursing.   He told officers he was tired of Reed and yelled that he had “beat the [expletive] out of Reed,” and “the next time I will [expletive] kill him.”   After telling police “I hope he [expletive] dies,” Hinkle declared that if the landlord or other tenants messed with him he would “[expletive] them up bad” and the place would “look like a slaughter house” with blood everywhere.   Hinkle was placed under arrest for assault in the second degree, was subsequently released from custody on bond, and was electronically monitored.   He was later indicted by a Kenton County grand jury for the assault and PFO I.

Prior to trial, Hinkle filed a motion to dismiss the action pursuant to KRS 503.085.   That statute grants immunity from criminal prosecution when a person's use of force is permissible under one of several statutes dealing with protection of self, property or another person. Double Hinkle relied upon the provisions of KRS 503.050 relating to self defense and KRS 503.055 relating to defensive force regarding a dwelling or residence in support of his argument to the trial court.  KRS 503.055 allows for a presumption of reasonable fear for persons inside their dwellings in certain circumstances.   The presumption does not apply when defensive force is used upon a person who is a lawful resident of the dwelling or has the right to be present on the premises.  KRS 503.055(2)(a).   The Commonwealth filed a written response to the motion and a brief hearing was held on the matter.   Relying on the holding in Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky.2009), the trial court found the Commonwealth had met its burden of showing probable cause that the force Hinkle used on Reed was unjustified, and denied Hinkle the immunity he sought.

The matter proceeded to a jury trial on August 17 and 18, 2010.   Testimony consistent with the foregoing statements was elicited.   All evidence was presented on the first day of trial.   On the second day, Hinkle failed to appear and a warrant was issued for his arrest.   The jury found Hinkle guilty of assault in the second degree and recommended a ten-year term of imprisonment enhanced to thirteen years by virtue of their finding him to be a PFO I.

Approximately two months later, Hinkle was located and arrested in Los Angeles, California.   He was returned to Kentucky and was charged with new crimes related to his absconding from the state.   The trial court sentenced Hinkle on the instant charges pursuant to the jury's recommendation.   This appeal followed.

In seeking a reversal of his conviction, Hinkle contends the trial court erred in failing to grant his motion seeking immunity from prosecution pursuant to KRS 503.085(1).   He further contends the trial court erred in permitting the Commonwealth to elicit irrelevant and highly prejudicial evidence regarding his prior ownership of the baton used in the assault.   After a careful review of the record, the briefs and the law, we reject Hinkle's contentions and affirm the judgment of the Kenton Circuit Court.

First, Hinkle alleges the trial court erred in failing to grant his pretrial motion to dismiss the charges against him pursuant to KRS 503.085.   He contends he was justified in using force to protect himself and his girlfriend from Reed's attempts to unlawfully enter his apartment and that he should therefore be granted immunity from prosecution under the statutory mandates.   In support of his position, Hinkle argues the trial court improperly considered the district court's finding of probable cause to refer the case to the grand jury as a finding that his use of force was unjustified.   He further contends the trial court erroneously relied upon the Commonwealth's assertions as to what the evidence produced at trial would reveal, and upon an incorrect assumption of the living arrangements of Hinkle and Reed. Based on these assertions, Hinkle believes the trial court erred in finding there was probable cause to believe his use of force was not legally justified.   We disagree.

Initially, we note that the provisions of KRS 503.085 are intended to relieve a defendant of the burdens of litigation at the earliest possible stage in the proceedings.   A defendant may raise the issue in the district court at his preliminary hearing, or may choose to wait until the grand jury proceedings are completed and an indictment has been issued before raising the matter in the circuit court.   However, “where a defendant has elected to wait and invoke immunity in the circuit court, the issue should be raised promptly so that it can be addressed as a threshold motion.”  Rodgers, 285 S.W.3d at 755.   Here, Hinkle was indicted on February 4, 2010.   He waited until June 25, 2010—less than three weeks prior to his scheduled trial date—to file his motion seeking immunity.   Clearly, the motion was not filed expeditiously following Hinkle's indictment.   While the trial court would have been within its authority to deny Hinkle's motion on this ground, it did not, and we reject the Commonwealth's suggestion that we should refuse to review the issue based on its untimeliness.   Nevertheless, we believe it is important to reiterate the holding in Rodgers that defendants should raise immunity claims promptly to avoid adverse rulings based on untimely filings.

Hinkle claims the trial court relied upon improper evidence and assertions in making its determination that his use of force was unjustified.   He believes the trial court's understanding of the living arrangements at the Sunset Avenue home led to an incorrect assessment of the justification for his use of force.   We discern no prejudice in the proceedings.

As in Rodgers, Hinkle's claims of error are “purely academic” because “he has been tried and convicted by a properly instructed jury in a trial with no reversible error.   In short, his self-defense claim has been thoroughly examined by both the trial judge under the directed verdict standard and the jury under the court's instructions and his entitlement to self-defense has been rejected.”  Id. at 756.   Both the Supreme Court and our Court have cited Rodgers in recent unpublished opinions as controlling, and we believe it is applicable in the instant matter.   The trial court rejected Hinkle's pretrial motion for immunity, denied his motion for a directed verdict, and the jury convicted him.   Thus, his claims of justification regarding his use of force were thoroughly considered and rejected, and remanding this matter to the trial court for reconsideration of its determination would not change the outcome.   Reversal is not required.

Finally, Hinkle contends the trial court erroneously permitted the Commonwealth to solicit testimony regarding his prior ownership of the baton used in the assault.   He alleges this evidence was irrelevant, unfairly prejudicial, and constituted evidence of “other crimes, wrongs, or acts” which is prohibited by the express terms of KRE  Double 404(b).  Again, we disagree.

The purpose of KRE 404(b) is to exclude evidence of other crimes, wrongs or acts when the purpose of introducing such evidence is to prove a defendant's character or that he acted in a way conforming to such prior bad acts.   Such evidence may be introduced for other purposes such as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]”  KRE 404(b)(1).   It may also be offered if such evidence is so inextricably intertwined with other essential evidence that separating the two would have an unreasonably adverse effect on the party offering the evidence.  KRE 404(b)(2).   We review a trial court's determination under the rule based on the abuse of discretion standard.   Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky.2007).

The challenged evidence presented here related to Hinkle's ownership of the baton prior to the date it was used in the assault on Reed. In McQueen v. Commonwealth, 339 S.W.3d 441 (Ky.2011), our Supreme Court recently held that evidence of prior ownership of a weapon is not prohibited by KRE 404(b).  At McQueen's trial for murdering his girlfriend, evidence was introduced that a few days prior to the shooting death he possessed a handgun while arguing with his girlfriend.   McQueen challenged the admission of this testimony and the Supreme Court rejected his argument as “nonsensical” that such testimony had a tendency to show he had violent tendencies.   In upholding his conviction, the Court held the evidence was properly admitted and noted “testimony that there was a firearm sitting on the kitchen table is not evidence of ‘other crimes, wrongs, or acts.’ ”  Id. at 448.

As in McQueen, we are unable to conclude that evidence of Hinkle's prior ownership of the baton demonstrates a violent propensity or that he acted upon such predisposition when he subjected Reed to the brutal beating.   Likewise, owning the type of baton used in this case is not, of itself, a crime, and we cannot discern how testimony regarding Hinkle's owning the baton could be construed as character evidence of other crimes, wrongs, or acts. Double His argument to the contrary is without merit.   The trial court did not abuse its discretion in permitting the Commonwealth to introduce the challenged evidence.

Therefore, for the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed.


NICKELL, JUDGE:   Double Double