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NOT TO BE PUBLISHED OPINION

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NOT TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0492-MR

JAMES ANTHONY GRAY APPELLANT 

V. 

ON APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE THOMAS CLARK, SPECIAL JUDGE

NO. 07-CR-00211

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION AND ORDER

James Anthony Gray was convicted by the Scott Circuit Court after a 

jury trial of two counts of murder for intentionally killing his parents, James 

Gray and Vivian Gray (collectively Gray’s parents), and one count of tampering 

with physical evidence. This Court reversed and remanded, and on retrial the 

jury again found Gray guilty of the same crimes.1 Gray received consecutive 

sentences for a total of fifty-five years’ as follows: Count 1, Murder: twenty 

years’; Count 2, Murder: thirty-years’; and Count 3, Tampering: five years’. 

Gray again appeals as a matter of right, alleging multiple trial errors. Gray’s 

1 The final judgment before us is the result of Gray’s third trial. The first trial 

ended in a hung jury. Our Court reversed the result of Gray’s second trial on the basis 

that Gray’s confession, procured after a lengthy police interrogation which included 

the use of a fabricated DNA report tying him to the murders should have been 

suppressed and constituted a reversible error. Gray v. Commonwealth, 480 S.W.3d 

253, 259-65 (Ky. 2016). Our Court also ruled that Gray’s alternative perpetrator 

evidence regarding Peter Hafer should have been admitted. Id. at 266-68. 
2

murder convictions are affirmed because the Court was equally split in its 

voting and the tampering conviction is reversed by a majority of the Court.

I. THE MURDER CONVICTIONS

As to the two murder convictions, the vote of the six members of this 

Court participating in the determination of this appeal is equally divided.

Therefore, pursuant to Supreme Court Rule (SCR) 1.020(1)(a), the judgment of 

the Scott Circuit Court on these convictions stands affirmed. 

Bisig, Keller, and Lambert, JJ., would affirm the judgment of the Scott 

Circuit Court; Conley, Nickell, and Thompson, JJ., would reverse the judgment 

of the Scott Circuit Court. VanMeter, C.J., not sitting.

II. THE TAMPERING CONVICTION

As to the tampering conviction, the vote of the six members of this Court 

participating, Bisig, Conley, Keller, Lambert, Nickell, and Thompson, JJ., is to 

reverse and remand for the trial court to vacate that conviction.

Gray argues that the mere fact that the gun used to commit the murders 

was never recovered was insufficient to allow the jury to infer that Gray 

intended to impair the availability of the evidence while believing an official 

proceeding may be instituted. Relying on Mullins v. Commonwealth, 350 S.W.3d 

434, 443-44 (Ky. 2011), Gray argues that the fact that the perpetrator leaves 

the scene with evidence is not enough to establish a tampering charge when 

insufficient steps were taken to locate that evidence and no proof is provided 

that the defendant acted to prevent the evidence from being available at trial. 
3

Gray argues that no evidence was presented at trial regarding what steps the 

police took to recover the gun.

The Commonwealth argues that in construing the evidence in the light 

most favorable to the Commonwealth, it was not clearly unreasonable for the 

jury to find Gray guilty of tampering after the jury found beyond a reasonable 

doubt that Gray had murdered his parents. There was evidence Gray had a .45 

caliber pistol, and the jury heard evidence that the police engaged in an 

extensive search for the murder weapon. The Commonwealth cites various 

portions of testimony from Detective Rodger Persley and states that the search 

for the murder weapon included Gray’s parents’ home and surrounding areas, 

Gray’s home, cars, and work van. Having reviewed such testimony, Detective 

Persley did not testify that Gray’s home was searched for the murder weapon. 

Instead, he testified that police sought a search warrant to seize Gray’s work 

clothes to test them for gunshot residue, but this warrant was denied.

KRS 524.100(1) states in relevant part: 

A person is guilty of tampering with physical evidence when, 

believing that an official proceeding is pending or may be 

instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical 

evidence which he believes is about to be produced or used 

in the official proceeding with intent to impair its verity or 

availability in the official proceeding[.]

In Mullins, 350 S.W.3d at 442, our Court established that evidence that 

the defendant must have left the scene with the firearm “is not enough to 

support a tampering charge without evidence of some additional act 

demonstrating an intent to conceal.” The Court explained: 
4

When a crime takes place, it will almost always be the case that 

the perpetrator leaves the scene with evidence. If this amounted to 

a charge of tampering, the result would be an impermissible “piling 

on.”

Instead, intent to impair availability of evidence, believing that an 

official proceeding may be instituted, is the standard required 

under KRS 524.100. . . . [W]here the person charged is the 

defendant, it is reasonable to infer that the primary intent when a 

defendant leaves the scene of a crime is to get himself away from 

the scene and that carrying away evidence that is on his person is 

not necessarily an additional step, or an active attempt to impair 

the availability of evidence.

Id. at 443. When there are “conventional” locations where a firearm could have

been found after being carried away, but there is no evidence that the police 

searched those places, rather than just searching the murder scene, this is 

insufficient to establish a tampering charge. Id. at 444. 

The Commonwealth cannot bootstrap a tampering charge onto 

another charge simply because a woefully inadequate effort to 

locate the evidence was made by the police. It is often the case that 

evidence will not be found. However, it is insufficient to bring a 

charge of tampering based solely on the fact evidence was not 

found when there were insufficient steps to locate that evidence, 

and there is no proof that the defendant acted with the intent to 

prevent evidence from being available at trial.

Id. 

This same reasoning was applied in McAtee v. Commonwealth, 413 

S.W.3d 608, 616-17 (Ky. 2013), to require a directed verdict on the tampering 

charge where the firearm was never located and a search was never made of 

the defendant’s residence or that of his girlfriend’s where he may have gone 

after committing the crime. 
5

Our Court went even further in Kingdon v. Commonwealth, 2014-SC000406-MR, 2016 WL 3387066, at *4 (Ky. June 16, 2016) (unpublished),2

where the police did look in the defendant’s apartment and automobile but 

failed to locate the firearm. The Court explained the Commonwealth’s inference 

that because the firearm was not located the defendant must have destroyed, 

concealed, or disposed of it so it could not be used as evidence, was insufficient 

to establish the crime of tampering, explaining:

The Commonwealth’s theory leads to the paradoxical situation in 

which the complete lack of evidence concerning the gun becomes 

sufficient “evidence” to prove that Kingdon destroyed it, concealed 

it, or otherwise disposed of it. The theory is fundamentally flawed 

because it unconstitutionally shifts the burden to the defendant to 

prove his innocence.

“The Commonwealth has the burden of proving every element of 

the case beyond a reasonable doubt[.]” KRS 500.070. “Due process 

commands that no man shall lose his liberty unless the 

Government has borne the burden of producing the evidence and 

convincing the factfinder of his guilt.” Speiser v. Randall, 357 U.S. 

513, 526 (1958) (citation omitted). If the Commonwealth’s inability 

to explain what happened to the weapon sufficiently established a 

prima facie case of tampering with physical evidence, then the 

defendant could be found guilty unless he provided evidence to 

prove he had not “destroyed, concealed, or disposed of” it. Our 

system works on the opposite premise: the state must present 

evidence of guilt; the defendant is not required to produce evidence 

of his innocence.

2 Pursuant to the Kentucky Rules of Appellate Procedure (RAP) 41(A), which 

replaces Kentucky Rules of Civil Procedure (CR) 76.28(4)(c), it is appropriate to 

consider this unpublished opinion and it satisfies the needed standards for 

consideration. Although Mullins and McAtee are certainly authoritative “there is no 

published opinion of the Supreme Court or the Court of Appeals that would 

adequately address the point of law” as to why tampering cannot be established in 

such a situation. RAP 41(A)(3).
6 

Id. at *5. We agree with the cogent reasoning expressed in Kingdon, which is 

particularly applicable here. 

Based on this precedent, there was insufficient evidence produced at trial 

to establish that Gray committed the crime of tampering with physical 

evidence. Accordingly, the Scott Circuit Court erred as a matter of law in failing 

to grant Gray a directed verdict on the tampering with physical evidence 

charge. We affirm the judgment and sentence of the trial court as to Gray’s 

murder convictions, vacate the judgment and sentence of the trial court as to 

Gray’s tampering conviction, and remand to the trial court for entry of a new 

judgment consistent with this Opinion. 

ENTERED: June 13, 2024

______________________________________

DEPUTY CHIEF JUSTICE